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ELRCDismissedNot stated in judgment (Nairobi, Judicial Review chamber summons dated 08.09.2023)

County Government of Wajir & another v Public Service Commission (Judicial Review Application E048 of 2024) [2024] KEELRC 2700 (KLR)

Employment and Labour Relations Court
30 October 2024
648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to let a litigant use judicial review to reopen a Commission decision the court had already turned into its own judgment.

What this practically means

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Executive summary

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The applicants filed a chamber summons dated 08.09.2023 seeking leave to apply for orders of certiorari to quash the respondent Public Service Commission's decision decided on 19.06.2024 and transmitted by letter dated 24.06.2024, for the leave to operate as a stay of that decision, and for mandamus compelling the respondent to admit the applicant's application for review dated 30.06.2024, all under Order 53 rules 1 and 2 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and the Fair Administrative Action Act. The respondent opposed the application through grounds of opposition dated 11.10.2024, contending that the ELRC judgment of 26.07.2024 in Nairobi ELRC Petition No. E047 of 2024 (Ibrahim Abdi Mohamed & Others v Adow Osman Ahmed & Others) had adopted the Commission's decision dated 06.09.2023 as a decree of the Court, that the Court was therefore functus officio, that the Commission could not review a decision now constituting a judgment of the Court, and that the application was incompetent and an abuse of process. Ruling after oral submissions made on 17.10.2024, Byram Ongaya, Principal Judge, upheld the respondent's case on all grounds. The Court found that the leave application concerned the Commission's decision already adopted as the Court's decision, that the administrative review had been determined before adoption, and that the judicial review application was an abuse of court process. The chamber summons dated 08.09.2024 was dismissed with each party bearing its own costs, the parties being public bodies.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to entertain the application for leave to apply for judicial review where the impugned decision of the Public Service Commission has already been adopted as a decree of the ELRC
  2. 2.Whether the court is functus officio over the subject matter of the application
  3. 3.Whether the application is an abuse of court process

Key legal issues

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01

Jurisdiction/functus officio

Holding

The court lacks jurisdiction and is functus officio because the Commission's decision sought to be reviewed was already recognized, adopted and enforced as the Court's decree in ELRC Petition No. E047 of 2024.

Reasoning

Counsel for the applicants confirmed that the leave sought concerned the Commission's decision already adopted as the Court's decision. Having adopted and enforced that decision as a decree, the court cannot direct the Commission to review the same decision, as that would amount to sitting on appeal over its own judgment. The proper avenue is the Court of Appeal.

p. 2
02

Abuse of court process

Holding

The application for leave to seek judicial review is an abuse of court process.

Reasoning

Because the applicant's leave application was a subject of the Commission's decision already adopted as the Court's decision, pursuing judicial review of the same decision in these proceedings amounts to a collateral attempt to revisit a judgment of the court, which is an abuse of process warranting dismissal.

p. 3

Legal principles established

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  • A judicial officer's application for leave for judicial review that seeks review of a decision already adopted as a decree of the court is an abuse of court process.

Court orders

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  1. 1.The application by the chamber summons dated 08.09.2024 is dismissed
  2. 2.Each party to bear own costs of the proceedings

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction under Order 53 rules 1 and 2 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act, Cap 26, and the Fair Administrative Action Act

Relief refused

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Leave to apply for orders of certiorari to quash the respondent's decision decided on 19.06.2024 and transmitted vide letter dated 24.06.2024

The leave sought relates to the Commission's decision already adopted as a decision of the Court; the application is an abuse of court process

p. 3

Leave operating as stay of the respondent's decision

The entire application was dismissed on jurisdiction and abuse-of-process grounds

p. 3

Leave to apply for orders of mandamus compelling the respondent to admit the applicant's Application for Review dated 30.06.2024

The Commission had already determined the administrative review application before its decision was adopted by the Court, and reviewing it now would amount to sitting on appeal over the Court's judgment

p. 3

Costs

Each party to bear own costs of the proceedings (both are public bodies).

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.

The case as urged for the respondent is upheld on all grounds.
p. 3Overall finding
The Court finds for the respondent that the application for leave for judicial review application to be filed is indeed an abuse of Court process.
p. 3Abuse of court process
In conclusion, the application by the chamber summons dated 08.09.2024, is hereby dismissed and each party to bear own costs of the proceedings.
p. 3Final orders

Issues in the judgment

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material

Date inconsistency: the chamber summons is described as dated 08.09.2023 in the opening paragraph but dated 08.09.2024 in the concluding order

minor

Date inconsistency: the respondent's decision is said to have been decided on 19.06.2024 while the decision being challenged is elsewhere referred to as dated 06.09.2023

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, "County Government of Wajir & another v Public Service Commission (Judicial Review Application E048 of 2024) [2024] KEELRC 2700 (KLR)", Case Analysis (2024). Not stated in judgment (Nairobi, Judicial Review chamber summons dated 08.09.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2700/eng@2024-10-30

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