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ELRCOtherPetition dated 1st April 2025

Kisii County Assembly Service Board & 2 others v Public Service Commission; Nyaoga (Interested Party) (Petition E006 of 2025) [2025] KEELRC 2778 (KLR)

Employment and Labour Relations Court
14 October 2025
2,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a discretionary PSC review process need not be exhausted before challenging a Public Service Commission decision in court.

What this practically means

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Executive summary

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The Petitioners, by a Petition dated 1st April 2025, challenged a decision of the Public Service Commission removing the Interested Party as Clerk of the Kisii County Assembly and affecting the 3rd Petitioner's appointment, alleging breaches of Articles 10, 25, 27, 28, 47, 48, 50 and 232 of the Constitution and the Fair Administrative Action Act. They simultaneously sought conservatory orders suspending the impugned decision. The Respondent filed a Preliminary Objection dated 17th April 2025 contending that the Court lacked jurisdiction under section 87(2) and section 88(4) of the Public Service Commission Act, Regulation 24 of the County Appeals Procedures Regulations 2022, and section 9(2) of the Fair Administrative Action Act, because the Petitioners had neither exhausted the two-tier appeal and review mechanism before the Commission nor sought exemption under section 9(4). The Respondent urged that the Petition and application be struck out with costs. The Petitioners countered that the review mechanism is narrow and discretionary, confined to fresh material facts and errors apparent on the record, and that their constitutional challenge fell outside it; they relied on County Government of Mandera on the availability of conservatory relief notwithstanding section 88(4). The Court held that section 88 uses the permissive word 'may', so review is not a mandatory precondition, and that no proceeding was pending before the Commission. The Preliminary Objection was dismissed with no order as to costs, with directions for disposal of the Petition to follow. This ruling determines only the Preliminary Objection; the Petition and conservatory application remain pending.

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 Petition given section 87(2) of the Public Service Commission Act and the doctrine of exhaustion
  2. 2.Whether failure to invoke the review mechanism under section 88 of the Public Service Commission Act and Regulation 24 of the Public Service Commission (County Appeals Procedures) Regulations, 2022 renders the Petition premature
  3. 3.Whether section 9 of the Fair Administrative Action Act bars the Petition absent an exemption under section 9(4)
  4. 4.Whether section 88(4) of the Public Service Commission Act ousts the Court's jurisdiction to stay or suspend the Commission's decision

Key legal issues

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01

Whether exhaustion of the review mechanism under section 88 of the Public Service Commission Act was a precondition to filing the Petition

Holding

No - the review mechanism is discretionary, not mandatory, and its failure to be invoked does not render the Petition incompetent

Reasoning

The Court examined section 88 and noted it uses the word 'may' rather than 'shall', meaning review is not compulsory. Since the Petitioners' grievance (misinterpretation of law and improper evaluation of facts) fell outside the narrow review grounds, and since the review provision is permissive, there was no mandatory internal remedy left unexhausted. The Petition was therefore properly before the Court.

p. 6
02

Whether the constitutional avoidance principle required the Petitioners to pursue the statutory remedy first

Holding

The principle calls for judicial restraint but does not oust jurisdiction; on these facts it did not bar the Petition

Reasoning

Relying on Jackson Maina Ngamau, the Court accepted that constitutional avoidance calls for restraint where a statutory remedy exists, but noted the decisions relied on were distinguishable on their facts. Here a decision of the Commission had already been made and no proceeding was pending before the Commission for adjudication, so nothing barred the Court from hearing the matter.

p. 6

Legal principles established

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  • Where the statutory review provision is discretionary ('may' rather than 'shall'), failure to seek review does not bar a party from approaching the court
  • Section 88 review under the Public Service Commission Act is limited to fresh material facts or error apparent on the record, and is not compulsory

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 17th April 2025 is dismissed
  2. 2.No order as to costs on the Preliminary Objection
  3. 3.Directions as to the disposal of the Petition to be given immediately upon delivery of the Ruling

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 165(3)(d) of the Constitution (as invoked by the Petitioners)

Relief refused

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Costs of the Preliminary Objection sought by the Respondent

The objection was dismissed with no order as to costs

p. 6

Costs

Preliminary Objection dismissed with no order as to costs; no costs order made on the Petition or application at this stage

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.

As such, the preliminary objection fails and is dismissed albeit with no order as to costs. There will be directions as to the disposal of the Petition before me immediately upon delivery of this Ruling. Orders accordingly.
p. 6Disposition - dismissal of the preliminary objection
In this case the Petitioners did not apply for review as it is not compulsory as the word used is “may” and not “shall” which could make it compulsory to seek a review before coming to this Court.
p. 6Discretionary nature of section 88 review - no mandatory exhaustion
There is nothing that bars this Court from hearing the matter at present as there is no proceeding pending before the Respondent for adjudication.
p. 6Court's jurisdiction where no review proceeding is pending

Issues in the judgment

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minor

The judgment inconsistently describes the party removed as Clerk - the Petitioners are said to challenge removal of the 3rd Petitioner, yet the disposition states the Interested Party was removed and the 3rd Petitioner imposed as Clerk

minor

The ruling is styled a judgment but disposes only of the Preliminary Objection; the Petition and application remain pending

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, "Kisii County Assembly Service Board & 2 others v Public Service Commission; Nyaoga (Interested Party) (Petition E006 of 2025) [2025] KEELRC 2778 (KLR)", Case Analysis (2025). Petition dated 1st April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2778/eng@2025-10-14

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