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ELRCPartially AllowedELRC Judicial Review Application (Nairobi), notice of motion dated 28.05.2024· [2025] KEELRC 482 (KLR)

Republic v Board of Directors, Agriculture & Food Authority & 3 others; Gikonyo (Nuts and Oil Crops Directorate & 6 others (Interested Parties); Kiume (Exparte Applicant) (Judicial Review Application E027 of 2024) [2025] KEELRC 482 (KLR)

Employment and Labour Relations Court
21 February 2025
2,725 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 quashed the Agriculture and Food Authority's 2024 staff restructuring policy because it was never approved by the Public Service Commission.

What this practically means

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Executive summary

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The ex-parte applicant moved the Court by notice of motion dated 28.05.2024 under section 8 of the Fair Administrative Action Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, seeking certiorari to quash and prohibition against implementing the Organisational Structure, Grading and Staff Establishment Policy for the Agriculture and Food Authority, April 2024, issued by the Authority upon the recommendation of the State Corporations Advisory Committee. The applicant contended that the Policy undermined section 11 of the Agriculture and Food Authority Act, which requires the Authority to organise its secretariat into directorates including a directorate of food production, and that it was made unlawfully, irrationally and without notice to affected staff. The Agriculture and Food Authority defended the Policy as an internal executive and policy matter. The Public Service Commission (4th respondent) countered that under Article 234(2)(a)(i) of the Constitution and sections 26, 27, 28 and 58(1) of the Public Service Commission Act, 2017, organisational structures of public bodies require its prior approval, which had neither been sought nor obtained. The State Corporations Advisory Committee said it acted only in an advisory capacity. The Court held that the impugned instruments could not be valid without the Commission's approval, that section 11 does not vest the Authority with power to create and abolish offices, and that the Authority could not act in exclusion of the Commission. Certiorari and prohibition issued. The accompanying contempt application dated 29.08.2024 failed as disobedience of the stay order of 27.05.2024 was not proved. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the impugned human resource instruments absent Public Service Commission approval

Holding

The instruments were invalid and unlawful because they did not receive the approval of the Public Service Commission, whose constitutional mandate under Article 234(2) covers establishment and abolition of offices in the public service

Reasoning

The Court found that the Authority and its Board were bound by the Commission's constitutional mandate as amplified by the Public Service Commission Act, 2017, its regulations and instructions. The claim of internal executive autonomy was misconceived because section 11(1) of the Agriculture and Food Authority Act requires implementation in accordance with 'any other Act of Parliament', which includes the Public Service Commission Act. Absent the Commission's approval, the instruments could not be valid.

p. 5
02

Scope of section 11 of the Agriculture and Food Authority Act

Holding

Section 11 does not vest the Authority with power to create and abolish offices; its functions must be exercised harmoniously with the Commission's mandate under Articles 10, 232 and 234 of the Constitution

Reasoning

The Court observed that section 11 is 'capable of being implemented within the constitutional mandate' of the Public Service Commission, and that the Commission's functions under Article 234(2), including ensuring an efficient public service and monitoring personnel practices, are wide. The Authority could not validly undertake its section 11 roles in exclusion of the Commission, and all respondents were urged to devise harmonious working channels.

p. 6
03

Contempt of the stay order of 27.05.2024

Holding

The contempt application failed because disobedience of the stay order was not proved

Reasoning

The applicant neither alleged nor showed the material respects in which the stay order was disobeyed. The order related to implementation of the impugned instruments only and did not bar the making of new instruments in accordance with the law. Disobedience having not been proved, the application was dismissed as unfounded.

p. 6

Legal principles established

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  • Human resource instruments of a state corporation, including organisational structures and staff establishment, require the approval of the Public Service Commission under Article 234 of the Constitution and the Public Service Commission Act, 2017 before implementation
  • Section 11 of the Agriculture and Food Authority Act does not vest in the Authority the power to create and abolish offices

Court orders

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  1. 1.Judicial review order of Certiorari removing into the court and quashing the Organisational Structure, Grading and Staff Establishment Policy for the Agriculture and Food Authority, April 2024 issued by the 1st Respondent upon the recommendation of the 3rd Respondent
  2. 2.Judicial review order of Prohibition restricting or preventing the 1st Respondent from implementing the said Policy
  3. 3.Dismissal of the contempt application dated 29.08.2024
  4. 4.Each party to bear own costs of the entire proceedings

Authorities

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Legislation

  • Fair Administrative Action ActSection 8
  • Law Reform ActSections 8 and 9
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(2)
  • Civil Procedure Rules, 2010Order 53
  • Agriculture and Food Authority ActSection 11
  • Public Service Commission ActSections 2, 26, 27, 28, 58(1)
  • Constitution of Kenya, 2010Article 234(2); Articles 10 and 232; Section 7 of the Sixth Schedule
  • State Corporations Actadvisory mandate

Cases cited (4)

  • Manyara Muchai Antony –Versus- Communications Authority of Kenya and 3 others
    [2022] eKLR
  • Consumer Federation of Kenya (COFEK) –Versus- National Social Security Fund Board of Trustees and 2 others
    [2022] eKLR
  • Republic –Versus- Kenya Ports Authority Board of Directors and 2 others and Public Service Commission as Interested Party Exparte Commission for Human Rights Justice
    ELRC JR Application No. E001 of 2022 at Mombasa
  • Enos Namasaka and Others –Versus- KEMSA & Others
    ELRC Petition No. E149 of 2022
Jurisdiction invoked
Section 8 of the Fair Administrative Action Act, 2015; Sections 8 and 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules, 2010; Rule 7(2) of the ELRC (Procedure) Rules, 2016

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, "Republic v Board of Directors, Agriculture & Food Authority & 3 others; Gikonyo (Nuts and Oil Crops Directorate & 6 others (Interested Parties); Kiume (Exparte Applicant) (Judicial Review Application E027 of 2024) [2025] KEELRC 482 (KLR)", Case Analysis (2025). ELRC Judicial Review Application (Nairobi), notice of motion dated 28.05.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/482/eng@2025-02-21

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