https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2006

Kenya Union of Clinical Officers v Chief Officer Health Services County Government of Marsabit & 2 others (Judicial Review Application E002 of 2026) [2026] KEELRC 2006 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2006 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Judicial Review Application E002 of 2026 SC Rutto, J July 3, 2026 Between Kenya Union of Clinical Officers Applicant and Chief Officer Health Services County Government of Marsabit 1st Respondent Marsabit County Public Service Board 2nd Respondent County Government of Marsabit 3rd Respondent Ruling 1.What is before this Court for determination is the Respondents’ Notice of Preliminary Objection dated 16th June 2026 premised on the following grounds;a.That the Notice of Motion is incompetent and offends the mandatory provisions of Order 53 Rule 1 of the Civil Procedure Rules, there being no leave sought or granted prior to the institution of these judicial review proceedings.b.That by reason of the foregoing procedural defect, the proceedings before this Honourable Court are a nullity ab initio, and the Court lacks jurisdiction to entertain and determine the same.c.That the judicial review proceedings are procedurally defective, incurably incompetent, and incapable of being sustained in law, thereby rendering them liable to be struck out.d.TAT the application and the entire judicial review proceedings constitute an abuse of the process of this Honourable Court 2.The Applicant opposed the Preliminary Objection through the Replying Affidavit of its General Secretary, George Gibore, sworn on 29th June 2026. 3.Mr. Gibore deposes that the Preliminary Objection is premised on the erroneous assertion that the present judicial review proceedings were commenced without leave of the Court. 4.He avers that leave to institute the judicial review proceedings was duly sought and granted by this Court on 19th December 2025 in Nyeri Judicial Review Miscellaneous Application No. E011 of 2025. 5.He further deposes that, pursuant to the leave so granted, the Applicant filed the substantive Notice of Motion dated 5th January 2026, which was lodged on 7th January 2026 as Judicial Review Application No. E002 of 2026. 6.Mr. Gibore further avers that, on 17th March 2026, the Court directed that Nyeri Judicial Review Miscellaneous Application No. E011 of 2025 and Judicial Review Application No. E002 of 2026 be consolidated. 7.He further states, on the advice of counsel, that the issues raised in the Preliminary Objection require reference to the Court record to ascertain whether leave was granted and whether the substantive Motion was filed pursuant thereto. Consequently, Mr. Gibore contends that the objection does not raise a pure point of law capable of determination by way of a preliminary objection. 8.Pursuant to the Court's directions issued on 18th June 2026, the Preliminary Objection was canvassed by way of written submissions. Submissions 9.In support of the Preliminary Objection, the Respondents contend that the Applicant filed a Notice of Motion application dated 5th January 2026 seeking orders of certiorari without first obtaining leave of the Court as required under Order 53 Rule 1 of the Civil Procedure Rules. They contend that there is neither an application for leave on record nor any order granting leave to institute judicial review proceedings. To this end, the Respondents have posited that failure to comply with the prescribed procedure renders the entire proceedings incompetent and a nullity ab initio. In support of this position, the Respondents have placed reliance on the cases of Dynamic Chemicals Limited & 4 Others versus Director of Public Prosecutions & Another, Judicial Review Application No E270 of 2025 and AAR Insurance Company Limited v Public Procurement Administrative Review Board; Secretary, Independence Electoral and Boundaries Commission & another, [2021] KEHC 12544 (KLR). 10.On the part of the Applicant, it is submitted that leave to commence Judicial Review proceedings was duly sought and granted by this Honourable Court on 19th December 2025 in Nyeri Judicial Review Miscellaneous Application No. E011 of 2025, following which it filed the substantive Notice of Motion as Judicial Review Application No. E002 of 2026, the suit herein on 7th January, 2026. 11.The Applicant, relying on the decision in Republic v Ag Clerk of Nairobi City County Assembly & another Ex-parte Robert Khamala Situma & 18 others [2021] KEELRC 292 (KLR), contends that the filing of the substantive Notice of Motion as a separate Judicial Review Application was not an irregularity, but was undertaken in accordance with the practice directed by the predecessor Judge of this Court. 12.The Applicant maintains that leave was granted on 19th December 2025 in Nyeri Judicial Review Miscellaneous Application No. E011 of 2025 and subsequently, the substantive Motion was thereafter filed pursuant to the leave granted within the timelines directed. Analysis and Determination 13.The Respondents’ contention is that the Applicant instituted the Notice of Motion dated 5th January 2026 seeking an order of certiorari without first obtaining leave of the Court as required under Order 53 Rule 1 of the Civil Procedure Rules. 14.The Applicant disputes that position, maintaining that leave to commence judicial review proceedings was duly sought and granted in Nyeri Judicial Review Miscellaneous Application No. E011 of 2025, following which it filed the substantive Notice of Motion as Nyeri Judicial Review Application No. E002 of 2026. 15.The record bears that the Applicant moved the Court through a Chamber Summons dated 16th December 2025 in Nyeri Judicial Review Application No. E011 of 2025 seeking leave to institute judicial review proceedings for an order of certiorari to quash the Respondents' decisions, directives and resolutions redeploying nineteen (19) of its members, as communicated in the letter dated 4th December 2025. 16.From the record, on 19th December 2025, the Court granted the Applicant leave to commence judicial review proceedings and directed that the substantive Notice of Motion be filed and served within fourteen (14) days, with the Respondents being afforded a corresponding period of fourteen (14) days after service to file their response. 17.It is apparent that, rather than filing the substantive Notice of Motion within the file in which leave had been granted, the Applicant instituted it as a separate cause, being Nyeri Judicial Review Application No. E002 of 2026, being the present suit. This position was brought to the Court's attention by the representative of the Applicant, Mr. Ombayo, on 17th March 2026, whereupon the Court directed that the two files be put together. 18.It is also worth noting that the heading of the Notice of Motion expressly indicates that it was filed pursuant to the leave granted on 19th December 2025 and the directions issued by the Court in Nyeri ELRC JR E011 of 2025. 19.What emerges from the foregoing is that the substantive Notice of Motion dated 5th January 2026 was filed pursuant to leave previously granted by the Court on 19th December 2025. 20.The Respondents' contention that the proceedings were instituted without leave is consequently not borne out by the record. 21.That said, the Court observes with tremendous respect that the practice of filing the application for leave and the substantive judicial review motion as separate causes is not ideal, as it is capable of occasioning procedural uncertainty and confusion, as aptly demonstrated in the present matter. 22.For the foregoing reasons, the Respondents' Preliminary Objection dated 16th June 2026 is hereby overruled with no order as to costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY 2026.............................STELLA RUTTOJUDGEIn the presence of:Ms. Ngumbao instructed by Dr. Ataka for the ApplicantNo appearance for the RespondentsNdati Court AssistantORDERIn 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 had 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 under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE