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ELRCDismissedJudicial Review No. E011 of 2025

Chrysostom Makhumbiri Agava v County Government of Vihiga & 4 Others

Employment and Labour Relations Court
24 September 2026
5,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a former Vihiga County officer's challenge to his contract non-renewal because he filed judicial review without first obtaining the court's mandatory leave.

What this practically means

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Executive summary

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The Applicant, a former Chief Officer in the County Government of Vihiga, challenged the non-renewal of his contract dated 21st March 2018 and the decisions of the Public Service Commission dismissing his appeal (County Appeal No. 087 of 2024) and review (County Review No. 004 of 2025). He sought declarations of procedural unfairness, certiorari quashing the Commission's decisions, twelve months' salary as compensation, damages for breach of contract, mandamus compelling reinstatement, and costs. The 1st, 2nd, 4th and 5th Respondents filed a preliminary objection contending the suit was instituted without mandatory leave under Order 53 Rule 1, that certiorari was time-barred, and that the claims were res judicata and an abuse of process. The 3rd Respondent maintained it acted fairly within its constitutional mandate. The court held that judicial review proceedings in the ELRC are governed by Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules per Rule 10(2) of the ELRC (Procedure) Rules, 2024, and that leave is mandatory; the Fair Administrative Actions Act did not displace this. Sustaining the preliminary objection, the court dismissed the application for want of leave. For completeness, it found the contract expired by effluxion of time with no proven legitimate expectation of renewal, and observed that an ordinary employment cause would have been the more appropriate vehicle. It made no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the application is properly before the court
  2. 2.Whether the Applicant is entitled to the reliefs sought
  3. 3.Costs

Key legal issues

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01

Whether leave is required before instituting judicial review proceedings in the ELRC

Holding

Yes - leave is mandatory; the FAAA did not displace the Law Reform Act and Order 53 requirements in the ELRC

Reasoning

Rule 10(2) of the ELRC (Procedure) Rules, 2024 expressly requires judicial review to be instituted under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. Order 53 Rule 1 prohibits prerogative order applications without leave. The court therefore held the FAAA route urged by the Applicant inapplicable before this court, sustaining the preliminary objection.

p. 22
02

Whether the non-renewal of the Applicant's fixed-term contract was unlawful

Holding

No - the contract expired by effluxion of time and no legitimate expectation of renewal was proven

Reasoning

The court found, for completeness despite dismissing the application, that the contract expired by effluxion of time. The Applicant failed to prove any express or implied promise or conduct by the 1st Respondent creating a legitimate expectation of renewal, nor any legal or contractual duty to renew upon expiry.

p. 23
03

Whether judicial review was the appropriate vehicle for the dispute

Holding

No - the dispute was a private-law employment matter for which an ordinary cause would have been appropriate

Reasoning

The court opined that the dispute concerned an employment relationship in the realm of private law, and that an ordinary cause rather than judicial review, which falls within public law, would have been the more appropriate avenue for the Applicant's grievances.

p. 23

Legal principles established

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  • Judicial review proceedings in the ELRC must be instituted under Sections 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, and leave is required before institution

Court orders

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  1. 1.The application dated 15th December 2025 is dismissed
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, via Rule 10(2) of the ELRC (Procedure) Rules, 2024

Relief refused

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Declaration that non-renewal of contract was procedurally flawed, baseless and unfair

Application dismissed without leave; contract expired by effluxion of time with no proven legitimate expectation

p. 23

Certiorari quashing PSC decisions of 26th February 2025 and 11th June 2025

Proceedings filed without mandatory leave; certiorari also out of time per Order 53 Rule 2

p. 23

Twelve months' salary compensation for unfair termination

No unfair termination established; fixed-term contract carried no expectation of renewal

p. 23

Damages for breach of contract

No breach proven; no obligation to renew or conduct appraisal established

Mandamus compelling reinstatement/re-engagement

No statutory or public duty demonstrated to support mandamus

Costs

No orders as to costs - each party to bear their own costs

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.

This Court finds and holds that the PO by the 1st, 2nd, 4th & 5th Respondents dated 21st January 2026 has merits and is hereby sustained
p. 22Preliminary objection on leave
The application was filed without leave of court and the proceedings are thus improperly before the court. On that ground the same are hereby dismissed
p. 23Dismissal for want of leave
the contract between the Applicant and the 1st respondent expired by effluxion of time. The Applicant failed to prove any legitimate expectation arising from express or implied conduct or promise by the 1st Respondent through its authorized officers
p. 23Legitimate expectation of renewal
a)That the application by the Applicant dated 15th December 2025 is hereby dismissed. b)No orders as to costs
p. 23Final orders

Issues in the judgment

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minor

Final orders numbered '50' under heading VII, repeating earlier paragraph number

minor

Review case number inconsistently cited

minor

Heading misspelt 'INRODUCTION'

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, "Chrysostom Makhumbiri Agava v County Government of Vihiga & 4 Others", Case Analysis (2026). Judicial Review No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2555/eng@2026-09-24

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