Republic v Public Service Commission & 2 Others; John Andati Barasa (Interested Party), Ex-Parte Samuel Amambia & 4 Others
The bottom line
#Kenya's Employment Court quashed a chief's appointment made through a discriminatory age-limit process, ruling the vacancy must be re-advertised to everyone.
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 appointment of the 4th Respondent as Assistant Chief on 1st February 2024 and the subsequent reinstatement or reappointment on 11th February 2025 was unprocedural, irregular, and unlawful
- 2.Who should meet the costs of these proceedings
Key legal issues
#Legality of the appointment and reinstatement of the 4th Respondent
Both the initial appointment and the reinstatement were tainted with illegality and unconstitutionality and were quashed
The 4th Respondent admittedly did not meet the advertised minimum age of 30 years at application, shortlisting and interview. When the Commission found the age limit discriminatory, it should have ordered a fresh, lawful advertisement open to all; instead it reinstated him unilaterally, discriminating against all other potential candidates excluded by the same age limit and violating Articles 10, 27, 47, 41, 73 and 232 and Section 5 of the Employment Act.
Whether the court should confine itself to process review and not merit review
Rejected; judicial review scope has widened and courts must concern themselves with both process and outcome
The court held that administrative law jurisprudence has developed such that it would be foolhardy to conduct procedural review while leaving an illegal decision standing; justice encompasses fairness in both process and outcome.
Jurisdiction of the ELRC and standing of the Applicants
Court had jurisdiction as the 4th Respondent is in employment; the authority-to-swear-affidavit objection was unfounded
The 4th Respondent's objection that the 1st Applicant lacked authority from co-Applicants and was not an interviewee failed: no complaint was raised by any Applicant, the Respondents are custodians of the records and failed to avail them, and it was not denied that the Applicants applied for the vacancy.
Compliance with the Access to Information Act for the merit-list prayer
Prayer for the merit list refused for non-compliance with Sections 7 & 8 of the Act
The Applicants made no prior request for the information in accordance with the Act; the pre-court procedure had to be exhausted before resorting to court, hence the mandamus for the merit list was premature and not granted.
Legal principles established
#- Where an advertised requirement is found discriminatory, the appointing body must re-advertise the vacancy to all qualified persons rather than reinstate a single excluded candidate, which discriminates against all others excluded by the same requirement
- Illegality in the process leading to an appointment taints the appointment even where the appointee has by then attained the qualifying age
- Judicial review has widened beyond procedural review; a court will not leave an illegal decision standing on process-only grounds
Court orders
#- 1.An order of certiorari issued bringing into the Court and quashing the decision of the 1st Respondent contained in the letters of 1st February 2024 and 11th February 2025 appointing and reappointing/reinstating the 4th Respondent as assistant chief of Matiha Sub-location, Kakamega County
- 2.No order on costs
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; leave granted 12th June 2025; the 4th Respondent is in employment
Relief refused
#Mandamus to produce the merit list of candidates from the 6/10/2023 interviews
Applicants did not comply with Sections 7 & 8 of the Access to Information Act before filing proceedings
Mandamus directing the 1st Respondent to appoint the 2nd best candidate
Granting it would repeat the same discrimination the court found, ignoring others excluded by the age limit
Costs against the Respondents
Proceedings were in the nature of public litigation
Costs
No order on costs - each party to bear own costs (proceedings treated as public litigation)
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.
Two wrongs cannot make a right; after confirming that the advert was discriminatory for prescribing a minimum age limit, the 1st Respondent ought to have directed that a fresh and lawful one be floated inviting all qualified and interested persons to apply.
The process leading to the appointment and reappointment or reinstatement of the 4th Respondent was thus tainted with illegality both in substance and procedure. It cannot stand the scrutiny of this court and must be quashed and set aside.
it would be foolhardy for a court to concern itself with procedural review and then leave an illegal decision standing. Justice is about fairness and the process and the outcome are matters of justice that should concern every court.
That an order of certiorari be and is hereby issued bringing into this Court and quashing the decision of the 1st Respondent as contained in the letters of 1st February 2024 and 11th February 2025 respectively appointing and reappointing or reinstating the 4th Respondent
Issues in the judgment
#Conflicting appointment dates: 'appointed to take up the impugned position on 1st January 2024' versus 'appointment on 1st February 2024'
Conflicting revocation dates: 17th April 2024 (4th Respondent) versus 17th February 2024 (court's analysis)
Conflicting reinstatement letter dates: 11th February 2025 versus 19th February 2025 in the Notice of Motion
Applicant's name appears as 'Samuel Amambia' in title and 'Samuel Elondanga Amambia' in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Public Service Commission & 2 Others; John Andati Barasa (Interested Party), Ex-Parte Samuel Amambia & 4 Others", Case Analysis (2026). Judicial Review No. E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2540/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.