https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1695

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI JUDICIAL REVIEW N0. E011 OF 2026 IN THE MATTER OF: PSC AСТ САР. 185 SECTION 34(1)(b) IN THE MATTER OF:-PSC REGULATIONS 2020 Section 16 HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL 2016 FOR THE PUBLIC SERVICE IN THE MATTER OF:-FAIR ADMINISTRATIVE ACTION ACT, N0.4 OF 2015 JOEL ONDUSO NYAMORA…………………………………………..EXPARTE APPLICANT -VERSUS- PUBLIC SERVICE COMMISSION………………………………………………RESPONDENT MR. SHADRACK KYENGO KAVUTAI…………………………….….INTERESTED PARTY *(Being an application for an early date for ruling)* CORAM Before Lady Justice Jemimah Keli C/A Otieno Representation Exparte Applicant- in person Respondent-Wangechi Advocate - Inhouse Counsel- Public Service Commission Interested Party – Kavita Advocate Instructed by Kiroga Kuria & Company Advocates JUDGMENT 1. The Ex Parte Applicant upon leave of the court granted on 30.01.2026 files a substantive Notice of Motion application dated 9th February 2026 brought under Section 12 of the Employment and Labour Relations Court Act, Order 53 of the Civil Procedure Rules 2010 and all other enabling provisions of the law seeking for the following orders- 2. An Order of CERTIORARI do issue to remove and quash the decision of the respondent dated 11.12.2025 for Acting Appointment of Secretary Probation and Aftercare service of MR. Shadrack Kyengo Kavutai, Director Probation for a period of 6 Months and do replace him with a Senior Director pending the advertisement and filling of substantive position. 3. An Order of PROHIBITION do issue prohibiting the respondent from victimizing, harassment and discrimination of the Applicant in any way by virtue of instituting these proceedings against the Respondent and Interested party herein. 4. An Order of MANDAMUS do issue compelling the Respondent to advertise and fill competitively the substantive position of Secretary Probation and Aftercare service before expiry of 6 months of Acting Secretary unless otherwise lawfully justified for extension. 5. A Declaration that the respondent's actions violated Article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015, PSC ACT, Regulations and its Human Resource Policies and Procedures Manual 2016 for the Public Service 6. THAT costs of this application be borne by the Respondent and interested party jointly and severally in any event. 7. Grounds of the application (a) The Respondent's decision of appointment of MR. Shadrack Kyengo Kavutai as Acting Secretary Probation and Aftercare service was induced by a letter from the Principal Secretary REF N0.SDC/SEC/HRM/4/50 of 19.11.2025 (b) The respondent equally admits in the appointment letter dated 11.12.2025 that the interested party was not the Senior most which act depicts that the PSC Act, Fair Administrative Action Act, 2015, Regulations 2020 and Human Resource Policies and Procedures Manual 2016 for the Public Service were not adhered in contravention to the rights and expectations of the three (3) Senior most Directors in Probation and Aftercare Service. (c) No aptitude test was conducted between Junior and Senior Directors in order for MR. Shadrack Kyengo Kavutai, Director Probation and Aftercare Service to be appointed as Acting Secretary Probation and Aftercare service. (d) Prior to the appointment of MR. Shadrack Kyengo Kavutai, Director Probation and Aftercare Service as Acting Secretary Probation and Aftercare service there was no written communication conveyed to the Senior most Directors detailing reasons why they were by-passed in the appointment and as such violated Fair Administrative of Action Act, 2015. (e) The respondent appointed Shadrack Kyengo Kavutai as Acting Secretary Probation and Aftercare Service on 11.12.2025 long before the position was declared vacant as the substantive Secretary Probation and Aftercare was still in office. (f) In acting appointments in the Public Service priority should always be to the seniority, experience and qualifications, however despite Senior Directors possessing all requisite qualifications, experience with clean records of Employment they were bypassed for unknown reasons which places their legitimate expectations in career progression and their future advancement in into a limbo. (g) THAT respondent's decision was unreasonable, irrational and failed to take into account relevant considerations (h) Respondent's action amounts to an abuse of power, illegal, procedurally unfair and tainted with bias and as such unless the orders sought are granted, the Applicant and his senior Co-Directors shall suffer irreparable prejudice. 1. The application was supported by the statutory statement of Joel Onduso Nyamora, the Ex parte Applicant, dated 9th day of February 2026, who produced as his evidence Annexed & marked “JON1' are letters from PSC and PS appointing the interested party, his letter of transfer and promotion as Director PACS. Response 1. The interested party opposed the application vide his supporting affidavit dated 13th March 2026 and, among others, produced documents to prove his career record. 2. The respondent filed replying affidavit sworn by Paul Pamba, its Chief executive officer dated 12th may 2026 in opposition of the application and annexed the advertisement dated 5th May 2026 for the impugned substantive position. DETERMINATION 1. The application was canvassed by way of pleadings and submissions. The Ex parte Applicant filed written submissions while the respondent and the interested court relied on filed affidavits. 2. The court considered the issue for determination to be whether the application was merited. The applicant’s submissions 1. Whether the impugned decision was illegal and ultra vires- The Applicant submits that the Respondent acted unlawfully in appointing the Interested Party as Acting Secretary despite acknowledging that he was not the senior most officer eligible for appointment. The Public Service Commission framework and the Human Resource Policies and Procedures Manual require that acting appointments be undertaken transparently, fairly and on the basis of merit, seniority, qualifications and experience. The Respondent departed from these principles without furnishing any lawful justification. The appointment was further influenced by a letter from the Principal Secretary dated 19th November 2025. While recommendations may be made, the Respondent remained under a legal obligation to independently exercise its statutory mandate in accordance with the law. By failing to do so, the Respondent abdicated its duty and acted outside the scope of its lawful authority. The Applicant submits that a public authority must exercise power only in the manner prescribed by law. Any decision reached in disregard of mandatory legal provisions is amenable to judicial review and liable to be quashed. 2. Whether the decision violated article 47 of the Constitution and the Fair Administrative Action Act -Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Applicant and the other senior-most Directors had a legitimate expectation that any acting appointment would be undertaken in accordance with the applicable legal framework. However, they were bypassed without being notified of the reasons for such decision. to The Respondent never communicated to the senior-most Directors why they had been overlooked. No reasons were supplied before or after the appointment. The failure provide reasons deprived the affected officers of an opportunity to understand and challenge the basis of the decision. The Fair Administrative Action Act obligates decision-makers to accord persons likely to be adversely affected by administrative action written reasons for decisions affecting their rights and legitimate expectations. The Respondent's omission rendered decision procedurally unfair and unconstitutional. 3. The Applicant submits that the impugned appointment was irrational and unreasonable. The Respondent admitted that the Interested Party was not the senior-most officer. Notwithstanding that fact, it proceeded to appoint him without conducting any aptitude test, competitive assessment, interviews or objective evaluation capable of demonstrating why he was more suitable than the senior Directors. In the absence of any objective criteria or documented assessment, the appointment appears arbitrary and unsupported by evidence. Administrative decisions must be founded on rational considerations and capable of objective justification. A decision that disregards relevant considerations and fails to explain departures from established norms is unreasonable and liable to be quashed. The Applicant submits that seniority, experience, competence and institutional knowledge are relevant considerations in acting appointments. The Respondent failed to demonstrate that these factors were properly considered. 4. Whether the appointment was premature and procedurally improper The Applicant further submits that the Interested Party was appointed on 11th December 2025 before the office of Secretary, Probation and Aftercare Service became vacant. An acting appointment ordinarily arises where there exists a vacancy or temporary inability of a substantive office holder to discharge official functions. The Respondent has not demonstrated that the substantive office had become vacant at the time of appointment. Consequently, the decision was premature, procedurally flawed and undertaken without a lawful basis. 5. Whether the applicant's legitimate expectation was violated- The Applicant and other senior Directors possessed the requisite qualifications, experience and clean employment records necessary for consideration for the acting position. The governing legal framework and established public service practice created a legitimate expectation that senior officers would either be considered for appointment or, where bypassed, furnished with lawful and reasonable explanations. By appointing a junior officer without explanation, the Respondent frustrated the legitimate expectations of the Applicant and other eligible officers. Such conduct undermines transparency, fairness, accountability and integrity within the public service. 6. Whether the applicant is entitled to the reliefs sought -The Applicant submits that the impugned decision is tainted by illegality, irrationality and procedural impropriety, which are recognized grounds for judicial review. The order of Certiorari is necessary to quash the unlawful appointment. Respondent’s case 1. The respondent was the appointing authority and justified the appointment of the interested party acting in the position of secretary probation and aftercare service vide replying affidavit of PAUL PAMBA as follows- 3. THAT as regards matters of law and where necessary, the same has been explained to me by the Commission's Counsel on record and therefore I wish to respond to the terms below:- The Constitutional and legal mandate of the Public Service Commission. 15. THAT the Public Service Commission (PSC) is established under Article 233(1) of the Constitution. On the functions and powers of the Public Service Commission, the Constitution provides as follows:- Article 234. ‘Functions and powers of the Public Service Commission (2) The Commission shall- (a) subject to this Constitution and legislation- (i) establish and abolish offices in the public service; and (ii) appoint persons to hold or act in those offices, and to confirm appointments; (b) exercise disciplinary control over and remove persons holding or acting in those offices: (c) promote the values and principles referred to in Articles 10 and 232 throughout the public service: (d) investigate, monitor and evaluate the organisation, administration and personnel practices of the public service: (e) ensure that the public service is efficient and effective; (f) develop human resources in the public service: (g) review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service: (h) evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service: (i) hear and determine appeals in respect of county governments' public service; and (j) perform any other functions and exercise any other powers conferred by national legislation.’ 16. THAT the Constitution under Article 234(2) (c) and 249(1)(b) requires the Commission to promote the values and principles referred to under Articles 10 and 232 throughout the public service and secure the observance by all State organs of democratic values and principles. That Article 10 of the Constitution provides that: National values and principles of governance (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them- (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include- (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights. nondiscrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. 17. THAT Article 232 of the Constitution provides that:- ‘Values and principles of public service- (1) The values and principles of public service include- (a) high standards of professional ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making; (e) accountability for administrative acts; (f) transparency and provision to the public of timely, accurate information; (g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions: (h) representation of Kenya's diverse communities; and (i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of- i. men and women; ii. the members of all ethnic groups; and persons with disabilities. (2) The values and principles of public service apply to public service in- (a) all State organs in both levels of government; and (b) all State corporations. (3) Parliament shall enact legislation to give full effect to this Article.’ 18. THAT Article 249 of the Constitution sets out the objects of the Chapter 15 Commissions and Independent Offices as follows:- ‘(1) The objects of the commissions and the independent offices are to- (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles: and (c) promote constitutionalism. (2) The commissions and the holders of independent offices- (a) are subject only to this Constitution and the law; and (b) are independent and not subject to direction or control by any person or authority.’ 19. Section 34 of the Public Service Commission Act Provides that:- ‘Acting appointments (1) Acting appointments shall be- (a) made by the lawful appointing authority; and (b) subject to the prescribed regulations and procedures which apply to appointments. (2) A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office. 3) An officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months. (4) A public officer may be assigned to perform duties vested in another public officer during a temporary absence of the other public officer. (5) An acting appointment under subsection shall- (a) be in favour of a public officer who is duly qualified and competent to perform the duty; and (b) not undermine the expeditious appointment or deployment of a competent person to the public office concerned. (6) The Commission shall, whenever it comes to its attention that an authorized officer has purportedly made an acting appointment or assignment, in contravention of the provisions of this section, take corrective action.’’ 20. That Section C.14 (4) of the Human Resource Policies and Procedures Manual for the Public Service provides that:- ‘All recommendations for acting appointments in Job Group 'Q' and above shall be accompanied by a draft indent for advertisement of the vacancy and shall be forwarded to the Public Service Commission.’ 21. Mr. Famba, the CEO of the respondent, contended that the State Department for Correctional Services in forwarding the request for the acting appointment of the Interested Party attached the indent for the position of Secretary, Probation and Aftercare Services. The Principal Secretary vide letter Ref. No. SDC/SEC/HRM/4/50 dated 19th November 2025 wrote to the Commission requesting Acting appointment of the Interested Party as Secretary Probation and Aftercare Service. The Commission vide letter Ref. No. PSC/2/3/Vol. 11/ (21) dated 11th December 2025 appointed the interested party herein to act in the position of Secretary Probation and Aftercare Service for a period of six (6) months with effect from 1st January 2026 or until the post is filled whichever is earlier. Therefore, the appointment of the Interested Party was temporary. The Commission vide advertisement placed on 5th May 2026 advertised the position of Secretary Probation for a competitive recruitment process in compliance with Section 34(5) (b) of the Public Service Commission Act.(Annexed hereto and marked as PF-1 is the advertisement dated 5th May 2026). 22. Mr. Famba contended that seniority is not a consideration when an acting appointment is being made as an acting appointment is not substantive but temporary. That the only considerations are as set out under Section 34 of the Public Service Commission Act. The Interested party’s case 1. The interested party, opposed the application vide his affidavit dated 13th March 2025 where he stated his career progression and specifically follows- That on 16.07.2025 he was promoted to the grade of Director, Probation and aftercare Service CSG "5" and was equally the Head of Probation Service Directorate. On 1.01.2026 he was appointed on the acting capacity to the grade of Acting Secretary, Probation and Aftercare Service, CSG5/ Job Group "T". 2. The interested party disputed the allegation by the petitioner that he was a "Junior Director" having worked cumulative period of 28 years and 7 months, progressed careerwise and achieved the merited promotions, considering both experience, academic and professional qualifications, as well as various performance awards. He asserted that he deserved the appointment to the position of Acting Secretary Probation and Aftercare Service, CSG4. According to the Career Progression Guidelines for Probation Officers of November, 2024 and that has been approved by the Public Service Commission; the qualifications of the position of Secretary, Probation and Aftercare Service, CSG4 are as follows: - 3. A minimum of fifteen (15) years relevant work experience probation, five (5) of which must have been in a Senior Management position or in equivalent or comparable position; 4. Bachelor's degree in any of the following disciplines: Social Work, Sociology, Criminology, Law, Counselling Psychology, Social Psychology or equivalent qualification from a recognized institution. 5. Master's degree in any of the following disciplines: Social Work, Sociology, Criminology, Criminal Justice, Law, Clinical Psychology, Social Psychology or equivalent qualification from a recognized institution; 6. Leadership Course lasting not less than four (4) weeks from a recognized institution; 7. Membership to a relevant professional body where applicable and in a good standing; 8. Certificate in computer application skills from a recognized institution; 9. Demonstrated professional competence and managerial capability as reflected in work performance arid results. 10. Exhibited a thorough understanding of national goals, policies, objectives and ability to relate them to Probation and Aftercare function.(Attached hereto and marked SKK 2-qualificatins of the Secretary Probation and Aftercare Service, CSG4, as provided Career Progression guidelines for Probation Officers approved by PSC, November 2024) The interested party asserted that he had met all the set qualifications of the position of Secretary, Probation and Aftercare Service, CSG4 according to the Career Progression Guidelines for Probation Officers of November, 2024. (Attached hereto and marked SKK 3 are copies academic, Professional and awards-based Certificates) 11. The interested party stated that the position of Secretary, Probation and Aftercare Service became vacant on 24.12.2025, after the retirement of Mrs Christine A. Obondi; as a standard Human Resource procedure and to allow proper and smooth transition, the authorized officer- the Principal Secretary recommended to the Respondent my appointment. The Respondent through its letter dated 11.12.2025, observed that; whereas he was not the senior most officer, he had all the requisite academic and professional qualifications for the position and was at the time in charge of Probation and Aftercare Directorate; and thus approved his Acting appointment to the grade of Secretary, probation and Aftercare Service (CSG 4/Job Group T) based on merits for a period of Six (6) months with effect from 1.1.2026. That it is not true that he was appointed to the Acting position before a vacancy in the said position as alleged, my appointment was with effect from 1.01.2026; and not earlier as alleged by the Applicant; the letter and correspondences only disseminated earlier to allow smooth transition. That amongst other job specifications; the holder of the position of Secretary, Probation and Aftercare Service, CSG4 is the head of the Probation and Aftercare Service Department, and is responsible to the Authorized/Accounting Officer for the overall management and coordination of the Probation and Aftercare function. Decision 1. The orders sought are as follows- 2. An Order of CERTIORARI do issue to remove and quash the decision of the respondent dated 11.12.2025 for Acting Appointment of Secretary Probation and Aftercare service of MR. Shadrack Kyengo Kavutai, Director Probation for a period of 6 Months and do replace him with a Senior Director pending the advertisement and filling of substantive position. 3. An Order of PROHIBITION do issue prohibiting the respondent from victimizing, harassment and discrimination of the Applicant in any way by virtue of instituting these proceedings against the Respondent and Interested party herein. 4. An Order of MANDAMUS do issue compelling the Respondent to advertise and fill competitively the substantive position of Secretary Probation and Aftercare service before expiry of 6 months of Acting Secretary unless otherwise lawfully justified for extension. 5. A Declaration that the respondent's actions violated Article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015, PSC ACT, Regulations and its Human Resource Policies and Procedures Manual 2016 for the Public Service 6. The court was guided by the decision in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) on the meaning and extent of the judicial review orders. The Court of Appeal on the Judicial Review Order of Prohibition observed- ‘What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings….The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.’’ In applying the foregoing decision in the instant case, the Court finds that the decision to appoint the interested party as acting Secretary Probation and Aftercare services is already done. Thus, the judicial review order of Prohibition is unavailable. The same is disallowed. 7. On the order of certiorari, the same is meant to quash the impugned decision if held to be ultravires and illegal. The order of mandamus is to compel a public authority to perform a duty. In the cited decision of the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR it was held - *‘24.The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”25.What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. We can do no better than give examples.’* 8. The court discerned the grievance of the Ex parte Applicant to be that he was bypassed unfairly in failing to be appointed as the acting Director for the impugned position, being a senior public officer having served for 36 years in the institution and that the interested party was unfairly picked, being his junior. The Ex parte Applicant further stated they were 3 Directors senior to the interested party, who had served for less than 27 years. The Exparte Applicant asserted that the regulations and procedures of appointment to an acting position and the PSC Act section 34 were not adhered to rendering the appointment of the interested party irregular, discriminative and unconstitutional. 9. The court finds that Respondent has constitutional power to appoint public officers o acting position under article 234 (1) of the Constitution to wit- ‘1(ii) appoint persons to hold or act in those offices, and to confirm appointments;’ 1. In exercise of the constitutional power, the respondent, following the exit of the substantive holder of the position of secretary, probation and aftercare services and upon request to do so by the user department, appointed the interested party to act for 6 months. The letter of appointment by Respondent was dated 11th December,2025 and communicated to the Principal Secretary, State Department of Correctional Services. The letter stated as follows- ‘ACTING APPOINTMENT Ref. Your No. SDC/SEC/HRM/4/50 of 19.11.2025 This is to inform you that the Public Service Commission has considered your request for Acting appointment in respect of Mr. Shadrack Kyengo Kavutai to the post of Secretary. Probation and Aftercare Service and: (a) Noted that: (1) Indents for various positions in your Ministry (State Department for Correctional Services) have been submitted to the Commission for advertisement: (ii) Whereas Mr. Shadrack Kyengo Kavutai. P/No. 1997040407. Director. Probation (CSG 5/Job Group S) is not the senior most officer. he nevertheless has all the requisite academic and professional qualifications for the recommended position and he is currently in charge of Probation and Aftercare Directorate; and (b) In view of (3) above, approved the Acting appointment of Mr. Shadrack Kyengo Kavutai. P/No. 1997040407. Director. Probation (CSG 5/Job Group 5) to the grade of Secretary. Probation and Aftercare Service (CSG 4/Job Group T) for a period of Six (6) months w.e.f. 1.1.2026 or until the post is filled whichever is earlier.’’ 1. The scope of order of mandamus is as stated in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR -‘*What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. We can do no better than give examples.’* The court finds that the respondent performed the duty of appointing the acting officer as requested and in the exercise of its constitutional mandate. The question in the suit was whether the act of appointing a director who was junior to the Ex Parte Applicant, also a director, and indeed with the existence of 2 other senior directors, was illegal and contravened the law. The Ex Parte Applicant stated the appointment violated section 34 of the Public Service Commission Act, which states as follows: ' 34**. Acting appointments** (1)Acting appointments shall be— (a)made by the lawful appointing authority; and (b)subject to the prescribed regulations and procedures which apply to appointments. (2)A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office. (3)An officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months. (4)A public officer may be assigned to perform duties vested in another public officer during a temporary absence of the other public officer. (5)An acting appointment under subsection (4) shall— (a)be in favour of a public officer who is duly qualified and competent to perform the duty; and (b)not undermine the expeditious appointment or deployment of a competent person to the public office concerned. (6)The Commission shall, whenever it comes to its attention that an authorised officer has purportedly made an acting appointment or assignment, in contravention of the provisions of this section, take corrective action.’’ 1. The court found no dispute as to whether the interested party was qualified for the acting position. He was appointed for a period of 6 months, effective 1st January 2026 or until the post is filled, whichever is earlier. I find the appointment was in compliance with section 34 of Public Service Commission Act. This is because there is no legal requirement for the most senior public officer to be appointed to act in a position which is vacant pending competitive appointment. Indeed, the respondent stated it had advertised the position of Secretary, Probation for competitive recruitment on 5th May 2026 (PF-1). 2. I find no merit in the application. The orders of judicial review cannot issue as the decision of appointment of the interested party in acting capacity, Secretary Probation complied with the provision of the law, being section 34 of the Public Service Commission Act, and the court finds the interested party met the criteria. 3. The application is dismissed. The court taking into account that the parties are in active employment relations orders each party to bear own costs. 4. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Ex Parte Applicant -Musiime Respondent - Wangechi