Republic v Tharaka Nithi Public Service Board & another; Nicholas (Exparte Applicant) (Employment and Labour Relations Judicial Review E004 of 2024) [2025] KEELRC 932 (KLR)
The bottom line
#A Kenyan employment court dismissed a jurisdictional objection because the respondent missed a 14-day filing deadline, showing court deadlines have real, automatic consequences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection is now moot.
- 2.Whether the preliminary objection should be allowed.
Key legal issues
#Whether the preliminary objection was moot by virtue of the 1st respondent's default in filing submissions within 14 days as ordered on 23rd July 2024
The objection was automatically dismissed by operation of the 23rd July 2024 order and the late submissions could not revive it; the objection is moot and stands dismissed.
The court's order of 23rd July 2024 directed the respondents to file and serve submissions within 14 days, failing which the preliminary objection would stand dismissed automatically. The 1st respondent filed its submissions on 6th September 2024, about one and a half months late. The court held that the default triggered automatic dismissal by operation of the order, and the belated submissions were incapable of resuscitating the dismissed objection.
Whether the court lacks jurisdiction for failure to exhaust the PSC internal appeal/review mechanism (section 88 of the PSC Act and Regulation 24 of the PSC (County Appeals Procedures) Regulations 2022)
Not reached on the merits; the objection was dismissed as moot before this issue was determined.
The 1st respondent argued that the applicant was required, under section 88 of the Public Service Commission Act and Regulation 24 of the PSC (County Appeals Procedures) Regulations 2022, to seek review within six months before escalating to judicial review, relying on Geoffrey Muthinja Kabiru. The applicant countered that judicial review lies where administrative bodies breach the law and the constitution, and that the 2nd respondent cannot sit on appeal over its own decision. The court disposed of the objection on mootness without ruling on the exhaustion question.
Legal principles established
#- Where a party fails to comply with a court direction to file submissions within a stipulated period, with the consequence that the application or objection stands automatically dismissed, late filing cannot resuscitate it.
Court orders
#- 1.The Notice of Preliminary Objection dated 25th June 2024 is dismissed as moot, having been automatically dismissed after 14 days from 23rd July 2024 upon the 1st respondent's failure to file submissions.
- 2.The dismissal paves the way for hearing of the Applicant's Notice of Motion dated 24th May 2024.
- 3.The 1st respondent is condemned to pay costs of the preliminary objection to the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court over administrative action of the Public Service Commission and county service organs (exact provision not cited in the ruling)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, I find that the Notice of Preliminary Objection dated 25th May 2024 was automatically dismissed after 14 days from 23rd July 2024 when the 1st respondent failed to file submissions to prosecute it.
Consequently, I agree with the applicant’s submissions that the objection is now moot and it is hereby dismissed to pave the way for hearing of the Applicant’s notice of motion dated 24th May 2024. The 1st respondent is condemned to pay costs of the preliminary objection to the Applicant.
Issues in the judgment
#The judgment states the preliminary objection is dated 25th June 2024 at the opening, but later refers to it as dated 25th May 2024.
The applicant's submissions attribute the default order to 23rd July 2023, while the judgment and the quoted order date it 23rd July 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Tharaka Nithi Public Service Board & another; Nicholas (Exparte Applicant) (Employment and Labour Relations Judicial Review E004 of 2024) [2025] KEELRC 932 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/932/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.