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ELRCDismissedNot stated in extract

Ngei v Chief Officer, Public Service Management & Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2023] KEELRC 2447 (KLR)

High Court of Kenya (Judicial Review)
12 October 2023
1,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The High Court in Kisumu ruled that constitutional violations can be taken straight to court without first exhausting Public Service Commission appeals.

What this practically means

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Executive summary

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This ruling by C. N. Baari J, delivered at Kisumu on 12 October 2023, determines a Notice of Preliminary Objection raised by the Respondent against the Ex Parte Applicant's judicial review motion. The Respondent argued that the proceedings, concerning recruitment, selection and appointment in county government public service, fell within the appellate jurisdiction of the Public Service Commission under Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, and that the Applicant was bound to exhaust those remedies before approaching the court, as required by Article 159(2)(c) of the Constitution and Section 9(2) of the Fair Administrative Actions Act. The Applicant countered that he had obtained leave to institute the judicial review proceedings; that his motion alleged violations of Articles 27, 29, 36, 38, 47, 50(1) and the Fourth Schedule to the Constitution, which are not appealable to the PSC; that the Respondent had usurped national policing functions; and that no adequate alternative remedy existed. The court framed the sole issue as whether it had jurisdiction to entertain the motion. Applying the Owners of Motor Vessel 'Lillian S' jurisdiction test and the exhaustion principle in Speaker of the National Assembly v Karume, the court held that while the PSC's appellate mandate is broad, the alleged constitutional violations and the judicial review orders sought were matters the PSC has no power to grant. The preliminary objection was accordingly found to lack merit and dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has the jurisdiction to hear and determine the Ex parte Applicant's Judicial Review Motion
  2. 2.Whether Article 234(2)(i) as read with Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, 2017 oust this Court's jurisdiction to entertain the motion

Key legal issues

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01

Whether the statutory appellate mechanism before the PSC ousted the High Court's jurisdiction over the judicial review motion

Holding

The PSC appeal mechanism did not apply because the matters raised were allegations of constitutional violations and prayers for judicial review orders which the PSC cannot grant; the court retained jurisdiction.

Reasoning

The court accepted that Section 77 of the County Government Act and Section 87(2) of the PSC Act require exhaustion of PSC appeals in employment matters. However, the motion was anchored on alleged violations of Articles 27, 29, 36, 38, 47 and 50(1) and sought judicial review orders. Such matters fall outside the appealable matters in Article 234(2)(i) and Sections 85, 86 and 87 of the PSC Act, so no adequate alternative forum existed.

p. 4
02

Whether the fact that the Applicant did not personally apply for any county position excluded him from the PSC appellate jurisdiction

Holding

Any person affected by a decision of the County Public Service Board may appeal to the PSC; non-application for a position did not exclude the Applicant from the PSC's appellate mandate, but this did not decide the matter as the claims were constitutional in nature.

Reasoning

Reading Section 77(1), the court observed that anyone affected by a County Public Service Board decision or purported disciplinary control may appeal to the PSC. The Applicant's argument that he never applied for a position therefore did not, by itself, remove him from the exhaustion regime. The objection nonetheless failed because the substance of the claims was constitutional violation, not employment grievance.

p. 4

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before invoking the court process (exhaustion doctrine).
  • The exhaustion requirement under the County Government Act and the PSC Act does not oust the High Court's jurisdiction over matters alleging constitutional violations that the PSC has no power to determine.
  • Jurisdiction is foundational; a court without jurisdiction must halt proceedings immediately.

Court orders

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  1. 1.The Preliminary Objection is found to lack merit and is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
High Court's supervisory and judicial review jurisdiction under Order 53 of the Civil Procedure Rules; court sitting as a judicial review court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find the Preliminary Objection lacking in merit and is hereby dismissed with costs.
p. 4Disposition - dismissal of preliminary objection
the issues raised under the motion cannot be remedied elsewhere other than before court.
p. 4No adequate alternative remedy for constitutional violations
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 3Primacy of jurisdiction (quoting Owners of Motor Vessel 'Lillian S')
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
p. 4Exhaustion doctrine (quoting Speaker of the National Assembly v Karume)

Issues in the judgment

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material

The judgment does not state the names of the Ex Parte Applicant or the Respondent, or the case/petition number, making full party identification impossible from the text alone.

minor

The judgment refers to Section 87(2) of the Public Service Commission Act as the 'Public Service Commission Act, 2017' while elsewhere citing it without a year; the PSC Act is enacted under the 2012 statute year, suggesting a possible typographical inconsistency.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngei v Chief Officer, Public Service Management & Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2023] KEELRC 2447 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2447/eng@2023-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.