Kombo v Principal Secretary, State Department for Technical, Vocational Education and Training & another (Judicial Review E008 of 2025) [2025] KEELRC 3774 (KLR)

AND PRINCIPAL SECRETARY, STATE DEPARTMENT FOR TECHNICAL, VOCATIONAL EDUCATION AND TRAINING ...................... 1ST RESPONDENT THE HON. ATTORNEY GENERAL .......................................... 2ND RESPONDENT JUDGMENT I. Inroduction 1. In a Notice of Motion (the application) dated 1st August 2025 filed through Shivachi Mutoka & Co. Advocates, the Applicant is seeking for the following orders – 1. That an order of Certiorari do issue removing disciplinary proceedings and decisions taken by and/or by his agents of the Principal Secretary, State Department for Technical, Vocational Education and Training as shown in their letters dated 2/4/2024 and 13/8/2024 and/or any subsequent ones for purposes of quashing the same. 2. That an order of prohibition do issue prohibiting the Principal Secretary, State Department for Technical, Vocational Education and Training, his agents, employees and/or any others acting under his instructions from ever taking such or like action against the applicant henceforth. 3. Costs of this application be provided for. 2. The application is expressed to be brought pursuant to Articles 41(1) & 47(1) of the Constitution, Order 53, Rule 1 & 3 of the Civil Procedure Rules, 2010, Sections 8 & 9 of the Law Reform Act, and Rule 7 of the Employment & Labour Relations Court (Procedure) Rules 2016. 3. The application is based on the grounds stated on the face of it and supported with the supporting afidavit of the Applicant sworn on even date, with several annexures thereto. 4. The application was filed pursuant to leave granted by the court (Dr Gakeri J) on 28th July 2025. 5. The Respondent filed a notice of preliminary objection (PO) dated 10th December 2025 raising the following points of law – 1. The Application ofiends Section 74 of the Public Service Commission Act 2017. 2. The Application ofiends provision of Section 9(a) of the Fair Administration of Actions Act No. 4 of 2015. 3. The Application ofiends the Doctrine of Exhaustion. 4. The Application ofiends Article 159 (2) of the Constitution of Kenya 2010. 6. However, Mr. Nyauma, Deputy Chief State Counsel, for the Respondents took no further steps and no written submissions were filed on the PO or the application. 7. The court directed that the application be canvassed by way of written submissions. Mr. Mutoka for the Applicant filed written submissions dated 2nd February 2026. As stated above, no submissions were received from the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3774/eng@2025-06-25 2

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II. Evidence 8. The Applicant is seeking orders of certiorari and prohibition to quash and restrain disciplinary proceedings initiated by the 1st Respondent through letters dated 2nd April 2024, 13th August 2024, and 26th February 2025. 9. In the supporting afidavit the Applicant’s case is that he terminated his employment with Sang'alo Institute of Science and Technology on retirement under the 50-year retirement rule and he is currently an employee of Kibabii University. He deposed that there is no employer-employee relationship between him and the 1st Respondent and, therefore, the Respondents lack capacity to subject him to disciplinary proceedings. He further states that the intended disciplinary action is malicious, constitute abuse of ofice, and is intended to interfere with his current employment and deny him retirement benefits. 10. Further, the Applicant states that after applying for early retirement and receiving no response from the 1st Respondent, he issued a reminder and his request was declined on the basis that there was an ongoing disciplinary action against him. The Applicant maintains that no disciplinary allegations/ charges or misconduct issues had been raised against him before his request for retirement and that the subsequent disciplinary process is unlawful and undertaken in bad faith. 11. The Applicant asserts that the disciplinary action violates his constitutional rights to fair administrative action and due process and, unless restrained, is likely to prejudice his employment at Kibabii University and afiect his retirement benefits. He therefore seeks for orders quashing the disciplinary proceedings and prohibiting the Respondents from taking any further action against him. III. Submissions 12. Counsel for the Applicant submitted on three issues – Whether the action by the 1st Respondent is tainted with illegality, irrationality and procedural impropriety; Whether the Applicant should be granted the Judicial Review orders prayed for; and Whether the Applicant is entitled to costs. 13. On the first issue, Counsel argues that the Applicant is not an employee of the 1st Respondent but of Kibabii University and alleges no employer-employee relationship subsists between him and the 1st Respondent to justify the disciplinary proceedings against him. 14. It is further submitted that the Respondents acted in bad faith in addressing the show-cause letter through the Vice-Chancellor of Kibabii University, thereby seeking to tarnish the Applicant's reputation and interfere with his employment relationship with his current employer and compromise his retirement benefits. 15. Counsel cited Council of Civil Service Unions v Minister for the Civil Service (1985) KLR for the proposition that judicial review remedies are founded on the grounds of illegality, irrationality and procedural impropriety. Counsel further cited Article 47(1) of the Constitution which guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair. 16. It is submitted that the impugned disciplinary proceedings are unlawful because there is no employment relationship between the parties; unreasonable because they were commenced in response to his request for settlement of retirement benefits; and procedurally improper because the showcause letter was channeled through Kibabii University and later Bungoma National Polytechnic for no reason at all instead of the letter being served upon him directly. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3774/eng@2025-06-25 3

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17. Counsel therefore urges the Court to find that the Respondent acted in breach of the principles of legality, rationality and procedural fairness, and grant the orders of certiorari and prohibition as prayed and award costs to the Applicant. IV. Analysis & Determination 18. Upon a careful and considered reading of the application, the afidavit in support, and the written submissions by Counsel for the Applicant, the following issues commend themselves to the court for determination – a. Whether the threshold for the orders of Certiorari and Prohibition has been met as for the court to issue the orders as prayed for in the application. b. Costs. V. Certiorari 19. The Applicant seeks orders of certiorari to quash the 1st Respondent’s disciplinary proceedings and decisions contained in the letters dated 2nd April 2024, 13th August 2024, and 26th February 2025. 20. By a letter dated 2nd April 2024, the 1st Respondent declined the Applicant's request for retirement under the 50-year rule, citing Section 71(4)(d) of PSC Regulations 2020 and stating that the Applicant had an ongoing disciplinary case. 21. By a letter dated 13th August 2024, addressed to the Applicant through the Vice-Chancellor of Kibabii University, the Applicant was required to show-cause why disciplinary action should not be taken against him for allegedly securing employment at Kibabii University while continuing to draw a salary from Sang'alo Institute of Technology between September 2018 and October 2023, resulting in an alleged overpayment of Kshs7,804,784/=. He was also required to refund the said monies. 22. By a letter dated 26th February 2025, the Applicant was invited to appear before a disciplinary hearing panel scheduled for 12th March 2025 regarding the same allegations. The letter informed him of his right to access evidence and to be accompanied by a representative or witnesses. 23. On 22nd October 2025, the court issued interim orders staying the disciplinary hearing pending the hearing and determination of this matter. 24. The Applicant availed his undated letter addressed to the 1st Respondent titled “Reminder over my earlier request for early Retirement”. In the said letter, the Applicant confirms that there was no communication from the 1st respondent on an alleged previous letter pertaining to his earlier request for early retirement. 25. Legally and logically, since the Applicant did not receive an afirmative response to his request for early retirement, his employment continued. He was not released from employment with the 1st respondent in Sang’alo Institute of Science and Technology. The Applicant continued being an employee of the 1st respondent and hence subject to the direct administrative control of the 1st Respondent. 26. Moreover, the Applicant has not denied that he continued to draw a salary from the 1st Respondent as an employee at Sangalo Institute of Science and Technology despite simultaneously being in the employ of Kibabii University. 27. The jurisdiction of the court in judicial review is firstly supervisory in establishing whether the decision complained of was made within the confines of the law. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3774/eng@2025-06-25 4

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28. Certiorari lies to quash decisions reached, inter alia, in excess or lack of jurisdiction. The letter by the Applicant to the 1st Respondent seeking to retire from service was received and stamped on 22nd November 2023 by the 1st Respondent. In the absence of the approval of the retirement, the Applicant remained an employee of the 1st Respondent. There is no proof by the Applicant that the 1st Respondent acted without authority in issuing the letters above in exercise of his/her administrative powers of Management of institutes of science and technology such as Sang’alo Institute of Science and Technology, as derived from Executive Order No. 2 of 2023- titled “Organization Of The Government Of The Republic Of Kenya”. This Executive order was issued by the Executive Ofice of the President in November 2023. 29. The court shall not interfere with the institutional functions of the 1st Respondent and, in the circumstances, declines to issue the order of certiorari as sought. There is no illegality, irrationality, unreasonableness, malice, caprice, or procedural impropriety demonstrated or proved and this court has no business entering into the workplace and purporting to manage the same. VI. Prohibition 30. The Applicant is seeking for an order of prohibition to restrain the 1st Respondent or agents, employees, or anyone under the direction thereof from taking any action against the applicant. Prohibition serves to prevent the making or implementation of a decision that is unlawful or unprocedural and so long as the same has not been executed. It does not concern the consequences of an act that has already been completed and implemented or executed. In essence, prohibition issues to forestall a future or anticipated unlawful act. It neither quashes nor corrects a decision that has already been made and implemented or executed, nor can it be invoked to remedy an existing wrong. 31. The Applicant was issued with the show-cause letter dated 13th August 2024 and was invited to appear before a disciplinary hearing panel vide the letter dated 26th February 2025. These actions have already been undertaken and it follows that there is nothing to be stopped or prohibited and issuance of such an order shall amount to nothing. 32. Further, the court shall not prohibit any investigations or disciplinary proceedings unless there is prima facie evidence of illegality as that shall amount to interference with the statutory or institutional powers conferred upon such authorities and bodies in management of their employees. An order of prohibition is thus declined as there is absolutely no ground for issuance of such an order. 33. For all the foregoing reasons, the application lacks merit and is hereby dismissed VII. Orders 50. The court finds and holds – a. That the application for Judicial Review by the Applicant dated 1st August 2025 has no merit and the same is hereby dismissed. b. No orders as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25TH DAY OF JUNE 2026. …………………… DAVID NDERITU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3774/eng@2025-06-25 5

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