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ELRCDismissedApplication dated 5th February 2025 (Judicial Review / adoption proceedings; ex parte orders of 30th January 2025 adopting 1st Interested Party's decision dated 1st August 2024)

Kenya County Government Workers Union v County Government of Homa Bay & 2 others; Public Service Commission & 2 others (Interested Parties) (Miscellaneous Case E118 of 2024) [2025] KEELRC 968 (KLR)

Employment and Labour Relations Court
26 March 2025
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to cancel reinstatement orders, ruling that a party served with court papers cannot ignore them and later claim the resulting orders are invalid.

What this practically means

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Executive summary

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The Homa Bay County Assembly Service Board (2nd Respondent/Applicant) moved the court by an application dated 5th February 2025 seeking to set aside ex debito justitiae the orders of 30th January 2025, which had adopted the 1st Interested Party's decision of 1st August 2024 finding that the dismissal of the 2nd and 3rd Interested Parties was unprocedural and ordering their reinstatement and payment of withheld salaries and allowances. The applicant argued the orders were issued ex parte, that the court introduced a reinstatement order not contained in the tribunal's decision, and that a review was pending before the 1st Interested Party. The Applicant/Respondent opposed, contending service was properly effected on 27th November 2024 as evidenced by the process server's return of service, that the review was an afterthought filed belatedly with feigned service, and that under section 88(4) of the Public Service Commission Act a pending review does not suspend implementation of a decision. The court, considering only the Applicant/Respondent's submissions, framed the sole issue as whether the orders ought to be set aside ex debito justitiae. It held that ex parte orders made after proper service are lawful, enforceable and of full force, and can only be vitiated where there was manifest failure of service or the order is illegal or null and void ab initio. None was shown. The motion was dismissed with costs to the Applicant/Respondent, payable by the 2nd Respondent alone.

Questions the Court framed

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

  1. 1.Whether the orders issued on 22nd January 2025 ought to be set aside ex debito justitiae
  2. 2.Whether the Respondents have properly filed the appeal/review application before the 1st Interested Party
  3. 3.Whether the execution of the orders dated 22nd January 2025 ought to be stayed

Key legal issues

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01

Whether the ex parte orders of 30th January 2025 should be set aside ex debito justitiae

Holding

No. Service was properly effected on 27th November 2024 as shown by the process server's return of service; the 2nd Respondent's failure to appear does not entitle it to have the orders vacated.

Reasoning

The court held that where a party is duly served but does not appear, the court may hear the matter ex parte and the resulting orders are valid and enforceable, no less than orders made with all parties present. Such orders can only be vitiated on sound principles demonstrated by the applicant. Here there was ample proof of service by affidavit of the process servers, service was not shown to be irregular or on the wrong parties, and permitting parties to sit out proceedings then assert nullity would mock justice.

p. 3
02

Whether a pending review before the 1st Interested Party warrants stay of the adopted decision

Holding

Impliedly no; per section 88(4) of the Public Service Commission Act, implementation of a decision is not deferred or suspended pending appeal or review.

Reasoning

The Applicant/Respondent relied on section 88(4) of the Public Service Commission Act and on County Government of Mandera, which held that a decision of the Public Service Commission is not automatically stayed on account of a review filed before the commission. The review application was also attacked as an afterthought, filed on 3rd October 2024 despite being dated 15th August 2023 and served with alleged misspelling of the applicant's email address. The court dismissed the motion without granting any stay.

p. 3

Legal principles established

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  • Ex parte orders made after proper service on the absent party are lawful, enforceable and of full force; failure to appear does not of itself vitiate them.
  • An ex parte order may be vacated ex debito justitiae only where there was manifest failure to serve or the order is illegal or null and void ab initio.

Court orders

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  1. 1.The 2nd Respondent/Applicant's motion dated 5th February 2025 seeking to set aside the orders of 30th January 2025 is dismissed
  2. 2.Costs of the motion awarded to the Applicant/Respondent, payable by the 2nd Respondent/Applicant alone, to the exclusion of the other Respondents and Interested Parties

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court to set aside ex debito justitiae orders issued ex parte; civil procedure on setting aside ex parte orders

Relief refused

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Setting aside ex debito justitiae of the court orders of 30th January 2025 adopting the 1st Interested Party's decision (including reinstatement and payment of withheld salaries and allowances)

Service on the 2nd Respondent/Applicant was proper; ex parte orders regularly obtained are lawful, enforceable and can only be vitiated on sound principles such as manifest failure of service or illegality, none of which was demonstrated

p. 3

Stay of execution of the orders based on the pending review before the 1st Interested Party

Existence of a review does not automatically stay implementation of the decision; section 88(4) of the Public Service Commission Act provides implementation shall not be deferred pending review

p. 3

Costs

Motion dismissed with costs to the Applicant/Respondent; as only the 2nd Respondent/Applicant moved the Court, the 2nd Respondent alone shall meet the costs of the motion to the exclusion of the other Respondents or Interested Parties

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.

These orders are neither null nor void. They are lawful, enforceable and proper. They are no less valid than an order issued in the presence of all parties. Such an order has the full force of the law.
p. 3Validity of ex parte orders after proper service
That can only be the case where there was manifest failure to serve, the order is illegal or null and void ab initio. To permit parties to sit out a judicial process only for them to come and assert nullity because they chose not to participate in the proceeding would be a mockery of justice.
p. 3Principles for setting aside ex parte orders ex debito justitiae
The motion before me spectacularly fails and is dismissed with costs to the Applicant/Respondent. As only the 2nd Respondent/Applicant moved the Court, it is the 2nd Respondent who shall meet the costs of this motion to the exclusion of the other Respondents or Interested Parties. It is so ordered.
p. 3Disposition and costs

Issues in the judgment

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minor

The judgment refers to both 'orders dated 30th January 2025' and 'orders dated 22nd January 2025' as the orders sought to be set aside, without reconciling the dates.

minor

The court states only the Applicant/Respondent's submissions are on record, yet purports to determine issues including the validity of the review; the review validity issue is addressed only through the Applicant/Respondent's submissions.

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, "Kenya County Government Workers Union v County Government of Homa Bay & 2 others; Public Service Commission & 2 others (Interested Parties) (Miscellaneous Case E118 of 2024) [2025] KEELRC 968 (KLR)", Case Analysis (2025). Application dated 5th February 2025 (Judicial Review / adoption proceedings; ex parte orders of 30th January 2025 adopting 1st Interested Party's decision dated 1st August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/968/eng@2025-03-26

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