Abukutsa-Onyango v Public Service Commission & another (Judicial Review E041 of 2026) [2026] KEELRC 2004 (KLR) (9 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **JUDICIAL REVIEW NO. E041 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **PROFESSOR MARY ABUKUTSA-ONYANGO……… PETITIONER** **VERSUS** **PUBLIC SERVICE COMMISSION OF KENYA ………………………………………………………….1ST RESPPONDENT** **MASENO UNIVERSITY…………….……….…….2ND RESPONDENT** **JUDGMENT** The instant Notice of Motion dated 4th May 2026 was filed 11th May 2026 after the court granted leave vide its Ruling delivered on 27th April 2026 and leave was to operate as stay. The Applicant sought various orders that: 1. The order of *certiorari* to remove into this Honourable court for purposes of being quashed and to quash the decision/List and/or omission and or administrative action of the 1st Respondent excluding omitting or failing to consider the *Ex-parte* Applicant’s application for the position of Vice-Chancellor of Maseno University and from the recruitment process contained in and evidenced by the publication dated 10th April, 2026, which decision was made without lawful basis without written reasons without notification and without affording the Applicant any opportunity to be heard: and An order of *certiorari* do issue to remove into this Honourable Court for purposes of being quashed and quash the shortlist, interview process and any consequential recruitment process arising from the impugned recruitment for the position of Vice-Chancellor, Maseno University and the decision of the 1st Respondent purportedly communicated by letter dated 15th April 2026. 1. The order of *mandamus* to compel the Respondents jointly to retrieve, acknowledge, consider, include, receive, evaluate and process the *Ex parte* Applicant’s application for the position of Vice-Chancellor, Maseno University for shortlisting in a fair and transparent manner and lawfully consider the Applicants application and include her in the recruitment process in accordance with the Fair Administrative Action Act and the Principles of fair administrative action, the law, constitutional requirements and published terms, does and hereby issues and include the Applicant’s and in any reconstituted shortlisting and interview process for the position of Vice-Chancellor of Maseno University. 2. An Order of *mandamus* to issue compelling the Respondents jointly and severally to accord the *Ex-parte* Applicant a fair, transparent, accountable and procedurally lawful recruitment process including according her an opportunity for interview should she meet the prescribed qualifications. 3. The order of prohibition to restrain the 1st Respondent whether themselves, their agents, servants, employees and/or persons acting on their behalf from concluding the interviews, implementing, operationalising, confirming, gazetting, deliberations, recommendations, appointments and/or otherwise giving effect to the impugned recruitment-process without considering the Applicant’s application in violation of the law pending hearing and final determination of the substantive judicial review application, does and hereby issues: AND WITHOUT PREJUDICE TO THE FOREGOING: 1. A declaration that the Respondents violated the *Ex parte* Applicant’s rights and fundamental freedoms under Articles 10, 27, 47 and 232 of the Constitution of Kenya does and hereby issues. The 1st Respondent conducted a recruitment process that resulted in the near-total exclusion of women with only one (1) women featured among twelve (12) applicants contrary to the constitutional requirement of equity, equality and non-discrimination. 2. A declaration that the letter dated 15th April 2026 sent to the Applicant on 16th April 2016 after filing of the suit was an afterthought, informed by ulterior motives or purposes calculated to prejudice the legal rights of the Applicant as per the Fair Administrative Action Act and is contrary to Articles 10, 27, 47 and 232 of the Constitution of Kenya 2010 does and hereby issue. 3. Spent. 4. This court issues any other order it deems fit including personal damages. 5. 10.Costs of these proceedings be paid by the Respondent jointly and severally. The motion is based on the grounds outlined on its face and the Supporting Affidavit of the *Ex parte* Applicant sworn on 4th May, 2026. The Applicant’s case is that pursuant to an invitation for applications for the position of Vice-Chancellor, Kenyatta University, Maseno University and the University of Nairobi, on 16th December 2025, she applied for the positions on 9th January 2026 within the prescribed time and in accordance with the requirements of the advertisement. The prescribed duration lapsed on the same day. The *Ex parte* applicant deposed that she handed over the three applications to one JUMA MALUMASI her Assistant to deliver to the Public Service Commission offices (herein after PSC) and was qualified for the position of Vice-Chancellor and was shortlisted for the position at Kenyatta University and University of Nairobi as per the list of Applicants and shortlisted candidates, published on 10th April 2026 but her name was missing on the list of applicants or shortlisted candidates for Maseno University despite having submitted her application. The affiant averred that she had photographic and documentary evidence of submission and/or receipt of her application, albeit not in perfect clarity. That the Applicant lodged a formal complaint via email on 12th April 2026 seeking clarification and physically on 13th April 2026. That the Applicant received an informal telephone communication suggesting that she may have applied for the position at Kenyatta University and University of Nairobi only, and thereafter escalated the matter to the Commission on Administrative Justice but received no response. That the 1st Respondent responded on 16th April, 2026 via email after the suit had been filed which according to the affiant was belated and reactionary. The Applicant further deposed that the PSC failed in its Constitutional and statutory obligations violated the Applicant’s rights under the provisions of Article 47 of the Constitution and the Fair Administrative Action Act and was excluded from the short list unlawfully contrary to the right to equal and equality opportunity as the only woman in a crowd of eleven (11) men and one (1) woman. In support of the Applicant's case Mr. Juma Malumasi swore an affidavit on 4th May 2026 stating that on 9th January 2026 between 1.00 pm to 2.00pm the *Ex* *parte* applicant called him to house C11within Jomo Kenyatta University of Agriculture and Technology (JKUAT) Juja Campus, and instructed him to deliver certain documents to the PSC offices and was given three sealed A4 brown envelops, all addressed to the Secretary/CEO PSC, Commission House, Nairobi, Each with a printed label affixed on both sides marked as; 1. “Application for the position of VC University of Nairobi” 2. “Application for the position of VC Kenyatta University” 3. “Application for the position of VC Maseno University” The sender's name was also indicated as Professor Mary Abukutsa-Onyango. The affiant deponed that he arrived at the PSC offices at 4.00pm -4.30pm and was directed to Room 19 where he found two gentlemen and when he presented the documents to the serving officer, he opened the three envelopes and stamped them received and placed it on top of other applications lying on the desk. That the Application to Maseno University was the last to be opened and the officer did not record the applications. That when he requested for proof of delivery and receipt, the officer hurriedly permitted him to take photographs of the stamped applications and he did so but due to the haste, the photograph for the application for Maseno University was unclear. That the officer was short, stout medium brown. That the *Ex* *parte* Applicant’s application for the position of Vice-Chancellor, Maseno University was duly delivered and received at the PSC offices. **1st Respondent's case** By a Replying Affidavit sworn on 21st May 2026, Mr. Paul Pamba, the 1st Respondent's Secretary/Chief Executive Officer deponed that the PSC declared vacancies for the position of Vice-Chancellor, University of Nairobi, Kenyatta and Maseno Universities on 16th December, 2026and applications were to be submitted in sealed envelops clearly marked “Application for the position of Vice-Chancellor Maseno University" and delivered to the Secretary/CEO. Public Service Commission, Commission House P.O. Box 30095-00100 NAIROBI as per the advertisement. That correspondence addressed to the Secretary could only be received at the Mail Registry and can never be opened without express instructions from the Secretary/CEO and no staff opened sealed envelops at the mail Registry as alleged by the applicant and Mr. Juma Malumasi. That the applicant's mode of submitting her application for the position of Vice-Chancelor Maseno University as alleged stamping at the PSC was contrary to the norm in which her other applications were received. That the Commission unsealed the submitted envelopes thereafter. That the applicant's allegation that she submitted her application for the position of Vice Chancellor Maseno University was untrue based on the evidence of receipt of the application. That although Mr. Juman Malumasi deponed that he was given 3marked envelopes for the 3 Universities they were not attached as evidence despite the identification as JM2. Mr. Paul Pamba deponed that the alleged informal telephone communication lacked validity and was incapable of review. That the lists of applicants and shortlisted candidates for University of Nairobi and Kenyatta university published on March 2026 and interviews conducted on 24th and 26th March 2026 while interviews for Kenyatta University were conducted earlier and only the list of applicants for Maseno University were published on 10th April 2026 and vide letter dated 15th April 2026 in response to her letter received on 13th April 2026, the PSC informed the *Ex* *parte* Applicant that it had no record of the Application for the position of Vice Chancellor, Maseno University That the alleged mail communication to the PSC on 12th April 2026was neither attached nor referred to in the letter dated 11th April 2026and the PS had no interest in denying any Kenyan the opportunity to apply for any position and cannot hide a candidate's application as evidenced by the PSC's registers which acknowledges receipt for the other two (2) applications. That the position of Vice Chancellor of any public university was not handpicked but competitive and allowing the suit would set a negative precedent and the substantive Motion is incompetent, fatally defective lacks merit, scandalous, frivolous and vexatious and an abuse of court process. **2nd Respondents Case** Vide Grounds of Oposition dated 28t May 2026, the 2nd Respondent contended that the instant motion was an abuse of court process as the Applicant had failed to show any known/or reasonable cause of action against the 2nd Respondent as the impugned process was vested in the 1st Respondent by law and the prayers sought were based on misconception of facts and law as they were not proved. That the application was an after thought intended to delay the recruitment of a substantive Vice-Chancellor of the 2nd Respondent. According to the 2nd Respondent, the application was grounded on unsubstantiated issues and was for dismissal. **Petitioner's Submissions** As to whether the Respondent violated the *Ex* *parte* Applicant’s rights under the Constitution of Kenya and the Fair Administrative Action Act, Counsel Submitted that the Respondent acted illegally by failure to comply with the Constitution and the law, acted irrationally by alleging that it never received the applicant's application notwithstanding evidence of submission of all the three applications and could not hide behind its administrative opacity or poor record keeping. Reliance was placed on the decision in **Municipal Council of Mombasa v Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001** on the parameters of Judicial review, to urge that the Fair Administrative Act operationalised Article 47 of the Constitution of Kenya and submit that the Respondent’s failure to record and process the Applicants application was illegal as it was received by the clerk who stamped it and only two applications were recorded. Reliancewasplacedon **Republic v Kenya Revenue Authority *Ex******Parte*****Yaya** **Towers** **Ltd** **(2008) eKLR** on the essence of judicial review. Counsel urged that the letter dated 15th April 2026 by the Respondent was a litigation and was an document not a lawful administrative decision afterthought. Reliancewasfurtherplacedon **Associated Provincial Picture Houses** **Ltd v Wednesbury Corporation (1948) 1KB 223** onirrationalityto urge that the Respondents evidence proved that the other applications were received and recorded. That the list of 12 persons shortlisted for the position of Vice Chancellor Maseno University had only one woman and exclusion of the applicant while preserving the counterpart raised an inference of discrimination which is prohibited by the Constitution. Counsel submitted that the applicant was entitled to the judicial review orders of *certiorari, mandamus* and prohibition and a declaration that the Respondents action violated the Applicant’s rights under Article 10,27,47 and 232 of the Constitution of Kenya. **1st Respondent's submissions** As to whether the Respondent violated the applicant’s right under Article 47 of the Cconstitution, reliance was placed on the sentiments of the Supreme Court of Kenya in **Wanderi & 106 others** **v Engineers Registration Board & 7 others (2018) KESC 54 (KLR)** on the test of legality to submit that the Respondent had the mandate to recruit Vice-Chancellors of public universities. That the applicant's contention was that since the other two applications were received the 3rd one was also submitted and received. Counsel submitted that the Respondent’s response to the applicant's letter dated 11th April 2026 on 16th April 2026 was not an afterthought and response was effected within 2 days yet the law prescribed 30 days. That no applications were opened at the Registry and the alleged photos hurriedly taken by Mr. Juma Malumasi were not attached as the ones record were illegible the images looked like letters and the applicant had failed to discharge the legal burden under Section 107(1) of the Evidence Act. Counsel submitted that the applicant failed to prove her allegations of having submitted an application for the position Vice-Chancellor Maseno University. Reliance was placed on the sentiments of the court in **Gatirau** **Peter** **Munya v Disckson Mwenda Kithinji& 2 others (2014) Eklr,** tourge that he wHo alleges must adduce evidence to prove the allegations. Counsel invited the court to find that the allegation that the application for the position of Vice-Chancellor Maseno University had not been proved and breaches of the Constitution on the Fair Administrative Act had not been established. As to whether the impugned recruitment process was illegal, irrational and procedurally improper art violated Articles 10, 27, 232 of the Constitution, counsel submitted that the applicant’s allegation that out of the 12 Candidates only one (1) was a woman and the applicant’s exclusion was discriminatory was extraneous and had not been raised in relation to the recruitment for the other universities. That in any case when vacancies are declared all qualified Kenyans are at liberty to apply and the accusation that the Respondent shortlisted more men than women, thus discriminating on the basis of gender was a prayer for sympathy. After all, positions can only be filled from those who apply.Reliance was placed on the decision in **St.** **Patrick** **Hill** **School** **v** **National Hospital Insurance Fund (2019) eKLR** ontheessenceof evidence in petitions. Counsel submitted that the allegation that the recruitment for the position of Vice-Chancellor Maseno University was illegal, irrational and procedurally improper lacked basis simply because the applicant failed to submit an application. On reliefs, counsel submitted that the applicant was seeking to compel the PSC to consider her application yet there was none and had not sought for an order to submit an application out of time for the court's consideration. Counsel urged the court to dismiss the petition with costs. **2nd Respondent's Submissions** As to whether the applicant had established a reasonable cause of action against the 2nd Respondent, reliance was placed on **Drummond Jackson v Britan Medical Association (1970) 2 WLR 688 cited in Muroki v Attorney General (2022) KEHC 16454 (KLR),** on what constituted a cause of action to submit that the pleadings by the ex parte applicantdid not implicate the 2nd Respondent on the recruitment process or how it was involved it how to violated her rights and none of the prayers sought related to the 2nd Respondent. Counsel urged the court to discharge the 2nd Respondent from the case and the motion be struck out far failure to disclose any reasonable cause against the 2nd Respondent. Concerning the reliefs sought, reliance was placed on the decision in **Municipal Council of Mombas v Umoja Consultants Ltd** (**Supra)** on the Principle of Judicial Review. Counsel wondered why the picture on the alleged Maseno University was unclear while the others were clear and documents on record showed that no application was submitted the 1st Respondent could not have acted illegally or irrationally and the applicant had not proved her case. Reliance was further placed on the sentiments of the court in **Pastoli v Kabale District Local Government Council & others (2008) EA 300** on the elements of judicial review, to urge that the *ex* *parte* applicant had not provided evidence to show that she submitted her application for the position and was engaged in a fishing expedition. Counselcitedthedecisionin **Joseph Daniel Gitahi Maina v Board &** **another (2018) KEELRC 1564 (KLR)**. Finally, counsel urgedthecourtto dismiss the petition. **Analysis** It is not in dispute that the 1st Respondent invited applications for the position of Vice Chancellor at the University of Nairobi, Kenyatta University and Maseno University on 16th December 2025 and subsequently published the list of Applicants and short-listed candidates for the Universities. As regards the University of Nairobi, there were eight (8) applicants and six (6) were short listed and the applicant we as among them and interview was scheduled on 19th March 2026. In the case of Kenyatta University, thirteen (13) individual submitted applications and eight (8) were shortlisted and the applicant was among them. Interviews were scheduled on 24th and 26th March 2026. Finally, in the case of Maseno University, twelve (12) individual submitted applications and ten (10) were shortlisted and the applicant was neither among the applicants nor among those shortlisted. Interviews were slated for 14th and 15the April 2026. The foregoing is a brief background of the instant application. The applicant sought leave to institute judicial review proceedings against the Respondents vide Chamber Summons dated 14th April 2026 and when the matter come up for directions on 16th April 2026 the cant issued directions on service and response and a hearing slated for 23rd April 2026. Leave was subsequently granted vide Ruling dated 27th April 2026 and was to operate as a stay. By a Motion dated 14th May 2026, the 2nd Respondent applied for the settling aside of the order of stay of recruitment granted on 27th April 2026. The applicant opposed the application vide Grounds of Opposition and the Motion was struck out vide Ruling delivered on 25th May 2026. It is not in dispute that the applicant submitted applications for the position of Vice-Chancellor University of Nairobi and Kenyatta University. The applicant, however, averred and counsel submitted that she submitted an application for a similar position at Maseno University but was neither listed as an applicant nor shortlisted and added that her application was received by the PSC from one Juma Malumasi. The 1st Respondent averred and Mr. Odukenya submitted the 1st Respondent did not receive any application from the applicant for the position of Vice-Chancellor Maseno University.According to the applicant since she gave Mr. Juma Malumasi three applications, he submitted all of them and the PSC excluded her application. No allegation of collusion or bad faith or *ulterior* motive on the part of the Respondent was alleged. The 1st Respondent on the other hand countered the submission and averment by submitting that the fact that two applications were received would not necessarily establish that the 3rd was also submitted or received. Significantly, the question whether the petitioner's rights under the Constitution of Kenya and the Fair Administrative Action Act were violated by the 1st Respondent or whether the 1st Respondent acted illegally, irrationally or procedurally improperly or whether any relief commend itself are dependent on the evidence on record and specifically, whether the applicant presented and the 1st Respondent received the application for the position of Vice-Chancellor Maseno University. In **OJSC power Machines Ltd & another v Public Procurement Administrative** Review Board Kenya & 3 others, the Court of Appeal stated; *"That the purpose of Judicial Review is to ensure that a party* *receives fair treatment in the hands of public bodies: that it is the* *purpose of judicial review to ensure that the public body after* *according fair treatment to a party, reaches on a matter which it is* *authorised by law to decide for itself a conclusion which is correct in the eyes of the court in judicial review proceedings. Put another* *way judicial review is concerned with the decision-making process* *not with the merits of the decision itself. In that regard, the court* *will concern itself with such issues as to whether the public body* *in making the decision being challenged had the jurisdiction, whether the persons affected by the decision were heard before the* *decision was made and whether in making the decision, the public* *body took into account irrelevant matters or did not take into* *account relevant matters”* Seealsointhisregard, ***Sanghani Investiment Ltd v Officer in* Charge** **Nairobi Remand** andAllocationPrisoncitedin **Njuguna & 5 others v** **Sogomi & another (2021) KECA 37 (KLR), Kajoi (Legal** **Representative of Geoffrey Kajoi Akwalu v Land Adjudication and** **Settlement Officer & another (2022) KECA 802 (KLR), Chief** **Constable of North Wales Police v Evans (1982) I WLR 1155**, **Commissioner of Lands v Kunste Hotel Ltd CA No.234/95, and** **Biren Amritalal Shal & Another v Republic & 30 others (2013) eKLR, Gatirau Peter Munya v Disckson Murenda Kithinji & 2 others** **(Supra) on the legal and evidential burden.** Seealso **Nyaanga v Cabinet Secretary Ministry of Labour & Social** **Protection (2026) KECA 1107(KLR).** While the applicant deponed that she gave three sealed envelopes to Mr. Juma Malumasi, the assistant to deliver to the PSC offices, she had no direct evidence of the submission or receipt of the application and only discovered the status on 12th April 2026, since 9th January 2026. Mr. Juma Malumasi delivered nothing as evidence of having submitted the three (3) applications and it is also unclear as to when the photographs on record were sent to the applicant. The WhatsApp message confirming delivery was sent on 13th April 2026at 16.35 pm and (4) images there attached. The court notes that although Mr. Juma Malumasi received the documents between 1.00pm and 2.00pm, it was not until 4.00 and 4.30 pm, that he arrived at PSC offices. Similarly, although Paragraph 5 of the affidavit stated that he had annexed the printed labels marked JM2, none was annexed to his affidavit and the printed forms of records are mere printed forms of records not those on the envelopes. The affiant adduced no evidence to prove that the printed labels had indeed been affixed on the applications. To prove that the 3 applications were indeed submitted and accepted, the applicant annexed three images marked as Exhibit MAO-4. The following is notable; 1. The 1st page is a part of a document. It is blurred and the contents are undecipherable. 2. The 2nd image is clearer and it is a letter to the Secretary/CEO of the 1st Respondent whose date is unclear under Reference Vice Chancellor University of Nairobi. The contents of the letter are blurred and not decipherable. 1. The last image whose general outline resembles the 2nd is blurred and the contents are not decipherable. According to the applicant the three images constitute evidence that the envelopes handled to Mr Malumasi were delivered to the officer’s of the PSC. On its part the 1st Respondent annexed two (2) pages of the applications received for the three positions in the three public universities and while the applicants name appeared on the list for the University of Nairobi and Kenyatta University as having been received on 9th January 2026, the applicant's name was missing on the list for Maseno University, which had twelve 12 names. The advertisement provided the mode of Application as follows: 1. Candidates should submit manual (Hard Copy) applications. 2. All applications should be submitted together with detailed CV copy of ID/Pass Port-copies of academic certificates etc. 3. The CV should include information on academic qualifications, professional experience, leadership and management roles, publication, awards etc. 4. Applications should be submitted in a sealed envelope clearly marked. *“Application for the position of Vice-Chancellor, Maseno University" and delivered to THE SECRETARY/CEO* *Public Service Commission,* *Commission House,* *P.O. Box 30095-00100,* *NAIROBI.”* The gravamen of the case is whether the applicant submitted an application for the foregoing position and in the prescribed mode. The 1st Respondent’s records show that no application was received from the applicant and the images relied upon by the applicant as evidence of submission of the application are blurred and the contents are not decipherable. Section 107 of the Evidence Act lays it bare that: 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Under section 108 of the Evidence Act the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 9 of the Act provides for proof of particular facts. Section 107 of the Evidence Act encapsulates the legal burden. The Halsbury’s Laws of England 4th Edition Volume 17 at page 13 and 14 describe it thus: *“The legal burden is the burden of proof which remains constant throughout the trial; it is the burden of establishing the facts and contentions which will support a party’s case.* *If at the conclusion of the trial he has failed to establish these to the appropriate standard he will lose.* *The Legal burden of proof rests upon the party desiring the court to take action: thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied: In respect of a particular allegation the burden lies upon the party for whom substantiation of that particular allegations is an essential of his case. There may therefore be separate burdens in a case with separate issues.”* Seealso **Gatiau Peter Munya v Mwenda Kithinji & 2 others** **(Supra), Maria Gabaitaru M'mairanyi & others v Blue Shield** **Insurance Co. Ltd (2005) IEA 280.** In the instant case the burden of the applicant was to prove on a preponderance of probabilities that it was more probable than not that she submitted an application for the position of Vice-Chancellor Maseno University in accord with the advertisement. In the courts view, the images provided by the applicant as evidence of submission of the application are too blurred and unclear for the court to interpret or make sense of and thus are of no probative value to the applicant's case. It is trite that documentary or other evidence relied upon by a party in a suit as proof of a fact or allegation must be readable or capable of being interpreted. In other words, it must be perceptible by the party relying on and the court. Unclear or unreadable documents submitted as evidence are of no probative value. From the evidence on record, it is the finding of the court that the applicant has failed to discharge the burden of proof to establish that she submitted her application for the position of Vice-Chancellor Maseno University. Having relied on a third party to submit her applications, the applicant could not attest to what transpired but relied on the evidence of the images captured by the 3rd party which failed to establish the fact of submission of the application to the PSC. There is no verifiable evidence to show that indeed the images were taken at PSC’s office. The assertion that evidence of receipt of the other applications signified receipt of all of the applications lacked persuasion since the applications were in separate envelopes and related to different institutions of higher learning. Relatedly, the applicant tendered no evidence to demonstrate that after receipt of the application the respondent for unexplained reasons decided to exclude the applicant from the list of those who had submitted applications with the intension of discriminating women applicants. It is trite that the short list can only be made from the long list of applicants and if for whatever reason only women apply, the short list shall comprise women only and vice versa. The court finds it infeasible that for the 1st respondent acknowledged receipt of two (2) applications from the applicant and shortlisted her for interview but simultaneously refused or declined to acknowledge receipt of the 3rd application for a similar position and excluded the applicant from the recruitment exercise. Flowing from the foregoing, it is the finding of the court that the applicant has failed to demonstrate that the 1st Respondent infringed her constitutional and other rights or acted illegally, irrationally or unprocedurally. The discretionary remedies of judicial review are not available to the applicant. As to whether the applicant had a cause of action against her 2nd Respondent it requires no belabouring that she had none as she had no complaint against the 2nd Respondent. More significantly, the 2nd Respondent had no role in the recruitment exercise. The entire process was exclusively the domain of the Public Service Commission. Finally, the applicant did not pray for any relief against the 2nd Respondent. The upshot is that the applicant's motion dated 4th May 2026 is unsustainable against the 2nd Respondent. From the foregoing it is discernible that the applicant's motion against the Respondents lacks merit and it is accordingly dismissed as against the 1st Respondent and struck out as against the 2nd Respondent. Parties shall bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 9TH** **JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** **In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person**