https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2417

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI JUDICIAL REVIEW DIVISION CASE NO. E052 OF 2026 IN THE MATTER OF: THE FAIR ADMNISTRATIVE ACTION RULES, 2024 IN THE MATTER OF: AN APPLICATION FOR ORDERS OF CERTIORARI BETWEEN GARISSA UNIVERSITY………………………………………………………………………….……………APPLICANT VERSUS THE PUBLIC SERVICE COMMISSION………………………………………………..……..1ST RESPONDENT ABDULRAHMAN HAMO MOHAMED…………………………………………..……….2ND RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING (On Notice of Preliminary Objection dated 17th June 2026 by the 1st respondent ) 1. The applicant filed a judicial review application way of originating summons brought under Fair Administrative Action Act Rules, 2024 dated 22nd May 2026 seeking for the following substantive orders- 2. THAT a conservatory order be issued staying the execution of the 1st Respondent’s decision reinstating the 2nd Respondent into the service of the Applicant university pending the hearing and determination of the judicial review application. 3. THAT this Honourable Court be pleased to issue an order of CERTIORARI to quash the 1st Respondent’s decision dated 29th April 2026 directing the Applicant to reinstate the 2nd Respondent into its service. 4. THAT this Honourable Court be pleased to grant such other orders as it may deem just and necessary to issue in the circumstances. 5. THAT cost of the Application be provided for. 6. In response, the 1st respondent filed a reply affidavit, sworn by Paul Pamba on 16th June 2026, in opposition to the originating motion, and further filed a notice of preliminary objection dated 17th June 2026, seeking to have the application struck out on the following grounds- 7. The application offends the doctrine of exhaustion of remedies as prescribed under Section 9(2) of the Fair Administrative Action Act, Cap.7L of the laws of Kenya and the attendant rules in that: a. By dint of Section 75 of the Public Service Commission Act, Cap.185 of the laws of Kenya, this Honourable Court lacks the jurisdiction, in the first instance, to hear and determine the application; b. Pursuant to Section 75 of the Public Service Commission Act as read together with Regulation 23(2) of the Public Service Commission (State Corporations and Public Universities) (Disciplinary Appeals Procedures) Regulations, 2025, the Applicant should first apply for a review before the Commission before challenging the decision before this Honourable Court through judicial review; and 8. The application has been lodged in gross violation and contravention of the mandatory Rule 11(3)(c) of the Fair Administrative Action Rules, 2024. 9. The Applicant has not sought to be exempted from the application of the doctrine of exhaustion as prescribed under Section 9(4) of the Fair Administrative Action Act. 3. The application offends Rule 5 of the Fair Administrative Action Rules, 2024 in that the mandatory notice of intention to sue has never been issued to the Public Service Commission by the Applicant. 10. The application has been filed in contravention of Regulation 9 of the Public Service Commission Regulations, 2020 which is couched in mandatory terms. 11. The Applicant’s Application is incurably defective and bad in law. 12. The applicant filed replying affidavit sworn by Professor Ahmed O. Warfa on the 25th June 2026 in opposition to the Notice of Preliminary Objection and stated he had been advised by his counsel as follows- section 75 (1) of the Public Service Commission Act provides as follows: “ A person who is dissatisfied or affected by a decision made by the Commission on an appeal may apply for review and the Commission may admit the application if:- (a) fresh material facts arise which with due diligence could not be presented when the decision was initially made; or b) there is an error apparent on the record of the earlier decision; the application for review to the Public Service Commission is not absolute as far as the foregoing provisions are concerned; An application for review is conditional on meeting the Two (2) grounds specified in Section 75 (1) of the PSC Act. Absent those 2 grounds, an application for review would automatically fail as the same would be contrary to the Act. He asserted that in the present circumstances, they had carefully analyzed the decision by the 1st Respondent and have found no error apparent on the face of the record neither have we established any fresh material facts that could not be presented during the pendency of the impugned appeal at the Public Service Commission. As a result, they had not satisfied and/or met any of the 2 grounds set out in section 75 (1) of the PSC Act to warrant us to submit an application for review with the Public Service Commission, before instituting the instant proceedings. That in the circumstances, submitting an application for review with the 1st Respondent would be totally unnecessary and contrary to the express provisions of Section 75(1) of the PSC Act, as aforesaid. That the 1st Respondent was sitting as a quasi-judicial body in determining the impugned appeal. Decisions of quasi-judicial bodies are either judicially reviewed or reviewed by the same body, if the 2 conditions for review are met as set out in Section 75(1) of the PSC Act. As the 2 conditions have not arisen in our case, the only plausible route or alternative open to the Applicant University was a judicial review route, which we have decided to pursue. That the other grounds of the preliminary objection are entirely opposed and the same amount to nothing but procedural technicalities which should not be used to deter the Applicant's right to access justice. The judicial Review Application is frivolous, incompetent. made in bad faith and should therefore be dismissed with costs. (The court omitted the averments related to the law as that is superfluous). 13. The court directed the notice of preliminary objection be canvassed first by way of written submissions. Decision Whether the Notice of Preliminary Objection was merited. 1. The objection was as follows- 2. The application offends the doctrine of exhaustion of remedies as prescribed under Section 9(2) of the Fair Administrative Action Act, Cap.7L of the laws of Kenya and the attendant rules in that: a. By dint of Section 75 of the Public Service Commission Act, Cap.185 of the laws of Kenya, this Honourable Court lacks the jurisdiction, in the first instance, to hear and determine the application; 3. Pursuant to Section 75 of the Public Service Commission Act as read together with Regulation 23(2) of the Public Service Commission (State Corporations and Public Universities) (Disciplinary Appeals Procedures) Regulations, 2025, the Applicant should first apply for a review before the Commission before challenging the decision before this Honourable Court through judicial review; and 4. The application has been lodged in gross violation and contravention of the mandatory Rule 11(3)(c) of the Fair Administrative Action Rules, 2024.The Applicant has not sought to be exempted from the application of the doctrine of exhaustion as prescribed under Section 9(4) of the Fair Administrative Action Act. 5. The application offends Rule 5 of the Fair Administrative Action Rules, 2024 in that the mandatory notice of intention to sue has never been issued to the Public Service Commission by the Applicant. 6. The application has been filed in contravention of Regulation 9 of the Public Service Commission Regulations, 2020 which is couched in mandatory terms. 7. The Applicant’s Application is incurably defective and bad in law. 8. The judicial review application is brought under the Fair Administrative Action Act. Section 9 of the Act provides as follows- ‘9. Procedure for judicial review (1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal*.’* 1. There is no dispute that the 1st respondent issued a decision dated 29th April 2026, reinstating the 2nd respondent to the service of the University, which the applicant is aggrieved by. The decision was pursuant to section 74 of the Public Service Commission Act, to wit, ‘74. Appeals’. (1)Any person who is dissatisfied or affected by a decision made by an authorized officer or other authority in exercise or purported exercise of disciplinary control against any public officer under this Act may appeal to the Commission.’ 1. The 1st respondent contended that the applicant had not exhausted the internal mechanism of review under section 75 of the Public Service Commission Act under section 9 of the Fair Administrative Action Act. Section 75 of Public Service Commission Act reads as follows- ‘**75. Reviews** (1)A person who is dissatisfied or affected by a decision made by the Commission on an appeal may apply for review and the Commission may admit the application if— (a)fresh material facts arise which with due diligence could not be presented when the decision was initially made; or (b)there is an error apparent on the record of the earlier decision. (2) An application for review under subsection (1) shall be in writing and made within six months from the date of the decision to be reviewed: Provided that the Commission may entertain an application for review out of time if, in the opinion of the Commission, the circumstances warrant it. (3) Despite the right to apply for review conferred on a public officer by this section, disciplinary action shall not be deferred or suspended pending the determination of the application for review. (4)After considering an application for review, the Commission may—(a)uphold the decision;(b)set the decision aside;(c)vary the decision as it considers to be just;(d)give such directions as it may consider appropriate with respect to the decision;(e)direct the refund, reinstatement of remuneration or release of any withheld payments due to the public officer as it considers to be just;(f)direct that disciplinary action be taken against any public officer who has failed to discharge a duty that was the public officer's responsibility to perform in relation to the disciplinary case and the concerned public body has suffered a loss; or(g)make any other appropriate decision in view of the circumstances of the case.’’ 1. The applicant answered that on reading the decision of the 1st respondent they found that, none of the grounds for review was relevant, that is a) fresh material facts arise which with due diligence could not be presented when the decision was initially made; or(b)there is an error apparent on the record of the earlier decision.’ That in the circumstances there was no need for the review. The 1st respondent contended that section 9 of FAAA was mandatory and that only way out was to comply with section 9(4) to wit-‘ 4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.’’ The 1st respondent relied on the decision in n the case of Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR, where the Court (Hon. John Mativo, J as he then was) had this to say about the doctrine of exhaustion of remedies premised on Section 9 of the Fair Administrative Action Act: ‘[56.] Section 9(2) of the Fair Administrative Action Act provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that an applicant shall first exhaust such remedy before instituting proceedings under subsection (1). [57.] The word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of the effect to be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether, a thing, has been ordered by the legislature to be done, and what is the consequence, if it is not done. The general rule is that an absolute enactment must be obeyed, or, fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. ……………………………………….. NRB ELRC JR NO.E052 OF 2026: PSC’s Written Submissions Page 7 of 12 [59.] The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory. [60.] A proper construction of section 9(2) & (3) above leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by section 9(4), which provides that: - "Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above sub section. First, the applicant must demonstrate exceptional circumstances. ……………………………………………………. [67.] The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of a successful application under section 9(4) of the Fair Administrative Action Act. The person seeking exemption must satisfy the court, first that there are exceptional circumstances, and, second, that it is in the interest of justice that the exemption be given. Section 9(4) of the Fair Administrative Action Act postulates an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. My reading of the said provision is that the applicant must first apply to the court and demonstrate the existence of exceptional circumstances. [Emphasis added]’ 2. The 1st respondent contended that language used in Section 9(2) of the Fair Administrative Action Act which denotes “mandatory” or “compulsory” makes it mandatory for a party to exhaust all internal appeal and review mechanisms under Sections 74 and 75 of the PSC Act before moving the Court for judicial review. The meaning of the foregoing is that before a party moves the court for any form of redress arising from a decision of the Commission on an appeal, the party must exhaust all the internal appeal mechanisms available including application for review. In the instant case, the Applicant has not exhausted its right to apply for review as mandatorily provided for under Section 9(2) of the Fair Administrative Action Act as read with Section 75 of the Public Service Commission Act. 20. If the Applicant wanted to be exempted from the application of the doctrine of exhaustion, it ought to have made an application to that effect in terms of Section 9(3) of the Fair Administrative Action Act. Until the above processes are fully exhausted, this Honourable Court would lack jurisdiction to entertain the matter in the first instance on account of the legal doctrine of avoidance. The 1st respondent, to buttress the foregoing submissions, relied on the decision of Muriithi, J in the case of Jackson Maina Ngamau v Ethics and Anti-Corruption Commission & 3 others [2015] eKLR, where he held thus: “18. The principle of ‘constitutional avoidance’ as discussed by the Supreme Court of Kenya in Communications Commission of Kenya & 5 Ors. v. Royal Media Services Ltd & 5 Ors. (2014)eKLR that the Court will not determine a constitutional issue or question even where it is properly before it, if there is another basis upon which the case can be disposed of, does not oust the jurisdiction of the Court but rather calls for judicial restraint in cases where there exists an statutory or other remedy. In addition, in accordance with the rule in The Speaker of the National Assembly v. Karume (2008) EG&F, it is now accepted as a principle of constitutional adjudication that where the constitution or statute makes provision for the process for determination of a particular matter that procedure should be strictly followed.” [Emphasis added] 3. The 2nd respondent joined issue with the 1st respondent and supported the objection. 4. The court asked itself, what is the meaning of the words‘’ any remedy " under section 9(4) of FAAA that is to be exhausted. In the context of the instant case, the remedy alleged by the 1st respondent is that of review. The Court noted that the said review is limited to 2 grounds only, namely: (a) fresh material facts arise which with due diligence could not be presented when the decision was initially made; or b) there is an error apparent on the record of the earlier decision. The applicant submitted they did not find, in the present circumstances, having carefully analyzed the decision by the 1st Respondent any error apparent on the face of the record, nor established any fresh material facts that could not be presented during the pendency of the impugned appeal at the Public Service Commission. The court finds that it would have been futile for the applicant then to apply for review of the decision when they did not meet the threshold under section 75(1) of the 2 grounds of review. Review, unlike an appeal, is limited, as in the instant case. The court then finds that the applicant was within their right to approach the court after the appeal decision, as the remedy of review was not available or viable to them. In the circumstances, there was no need to make an application for exemption. One cannot be exempt from a mechanism which is not available and viable for their grievance. That would be an academic exercise. 5. The Notice of Preliminary Objection dated 17th June 2026 is held to be without merit and dismissed with costs in the cause. Mention on the 21st September 2026 for directions on the substantive application. 6. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Abubakar 1st Respondent: Ogosso 2nd respondent