https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2183

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **MISCELLAENOUS APPLICATION NO. E014 OF 2026** IN THE MATTER OF: ENFORCEMENT OF THE DECISION OF THE PUBLIC SERVIСЕ COMMISSION DATED 19TH DECEMBER 2024 **BETWEEN** DAVID OTIENO OTIENO *&* 25 OTHERS……………….….**APPLICANTS** **VERSUS** COUNTY GOVERNMENT OF HOMA BAY…………………..…………...…………**1ST RESPONDENT** HOMA BAY COUNTY PUBLIC SERVICE BOARD.........................................................**2ND RESPONDENT** **RULING** 1. The Applicants moved this court via an application dated 23rd March 2026 seeking the following orders: * + 1. THAT this Honourable Court be pleased to grant leave to the Applicants to file and prosecute the application for enforcement of the Public Service Commission decision dated 19th December 2024 out of time. 2. THAT upon grant of leave, the Applicants' application for enforcement be deemed duly filed and properly on record. 3. THAT costs of this application be provided for. 2. The application is supported by the grounds on its face and the supporting affidavit of Mr. David Otieno Otieno. He avers that after the Applicants' employment was terminated by the Respondents through letters dated 7th August 2023 without valid reasons and without following a fair procedure. They appealed to the Public Service Commission (PSC), which, by its decision dated 19th December 2024, found the termination unlawful, set aside the impugned decision, ordered their reinstatement without loss of benefits, and directed the Respondents to pay all salaries and attendant benefits from the date of termination until payment in full. He contends that despite service of this decision, the Respondents have failed, neglected and/or refused to implement it. He explains that the delay in filing the enforcement application was occasioned by factors beyond the Applicants' control, namely the Respondents' application for review dated 28th December 2024, which created uncertainty regarding the immediate enforceability of the PSC decision, and the subsequent filing of **Judicial Review Miscellaneous Application No. E041 of 2025** dated 25th September 2025 challenging the jurisdiction and validity of the PSC decision. According to the Applicants, the pendency of those proceedings created a reasonable apprehension that enforcement proceedings could prejudice or conflict with the judicial review process, prompting them, in good faith and out of respect for the judicial process, to defer enforcement until the impediments were resolved. For the foregoing reasons the Applicants contend that the delay is excusable, and neither deliberate nor inordinate. They also contend that they moved the Court promptly once the impediments were resolved, that the Respondents will suffer no prejudice if leave is granted, whereas the Applicants continue to suffer loss of livelihood, denial of their constitutional rights, and grave prejudice arising from the Respondents' continued non-compliance with the PSC decision. They therefore urge the Court to grant the orders sought in the interests of justice, fairness and the protection of labour rights. 3. The 1st and 2nd Respondents oppose the application through Grounds of Opposition dated 23rd March 2026. They contend that the application is incompetent, misconceived, vexatious and an abuse of the court process. They argue that the Public Service Commission's decision dated 19th December 2024 cannot be enforced directly as a court order unless it is first adopted as a judgment of the Employment and Labour Relations Court. The Respondents further contend that the application is fatally defective because no substantive application for enforcement has been filed or annexed to the Notice of Motion, rendering it impossible for the Court to grant leave in respect of a non-existent application. They also argue that the Court has already determined the validity of the Public Service Commission's decision in **Kisumu Judicial Review Miscellaneous Application No. E041 of 2025**, which was dismissed on its merits, and is therefore *functus officio* and lacks jurisdiction to revisit the same issues. Moreover, the Respondents contend that the application improperly seeks substantive relief by way of a Notice of Motion contrary to Rules 4 and 7 of the Employment and Labour Relations Court (Procedure) Rules, 2016, which prescribe the manner in which substantive proceedings are to be instituted. Accordingly, they maintain that the application is premature because the Court's jurisdiction has been challenged and the validity of the impugned orders remains in issue. Consequently, they urge the Court to find that the application is devoid of merit and dismiss it with costs. 4. In rejoinder via a supplementary affidavit by David Otieno sworn on 19th May 2026, He concedes that the Public Service Commission's decision dated 19th December 2024 cannot be enforced directly and must first be adopted as a judgment of a court of competent jurisdiction. He avers, however, that this is precisely why the Applicants seek leave to file the intended application for adoption out of time, the statutory period for doing so having lapsed due to circumstances beyond their control. He annexes the PSC decision together with the draft application intended to be filed upon leave being granted. The Applicants further avers that the Applicants had previously moved the Court in **Kisumu Judicial Review Miscellaneous Application No. E021 of 2025**, where their application was struck out following the upholding of a preliminary objection on the ground that they had failed to comply with section 21 of the Government Proceedings Act. According to the Applicants, the Court did not determine the issues raised in the present application, and therefore the Respondents' contention that the Court is *functus officio* is misconceived. The Applicants maintains that the present application is confined to seeking leave to file an application out of time for adoption of the PSC decision and does not seek substantive enforcement at this stage. He further avers that, the dispute being an employment matter, this Court has jurisdiction to entertain the application, which cannot be said to be premature since its purpose is merely to obtain leave to commence the process of adopting and subsequently enforcing the PSC decision dated 19th December 2024. Lastly, the Applicants reiterates that the delay in seeking enforcement was neither deliberate nor intentional but arose from the circumstances explained in the supporting affidavit, and accordingly urges the Court to find the application properly before it and to grant the orders sought. 5. The application was canvassed by way of written submissions. Applicants’ Submissions 1. The Applicants submit that the application is merited and that the Court should exercise its discretion to grant leave to file an application for adoption and enforcement of the Public Service Commission (PSC) decision dated 19th December 2024 out of time. The Applicants contend that the delay in seeking enforcement was neither deliberate nor inordinate but was occasioned by factors beyond the Applicants' control. In particular, the Respondents filed an application for review of the PSC decision under section 88 of the Public Service Commission Act and Regulation 21 of the Public Service Commission (County Government Public Services Appeals Procedures) Regulations, 2016, thereby creating uncertainty as to the enforceability of the decision. It is further submitted that section 87(2) of the Public Service Commission Act and section 9(2) of the Fair Administrative Action Act require parties to exhaust the prescribed statutory mechanisms before resorting to court proceedings, and the Applicants acted in compliance with that legal framework. The Applicants further submit that the Respondents have failed to comply with the PSC decision despite being under a statutory duty to do so, thereby necessitating the intended application for adoption and enforcement. Reliance is placed on **Republic *v* Kajiado County Public Service Board; Public Service Commission (Interested Party); Gitonga *&* another (Ex parte Applicants) [2025] KEELRC 481 (KLR)** for the proposition that leave ought to be granted to facilitate enforcement of a PSC decision. It is further submitted that the intended application is arguable and not frivolous, and that at the leave stage the Court is only required to satisfy itself that the intended proceedings disclose an arguable case without delving into the merits. In support of this proposition, reliance is placed on **Patel *&* another *v* Sports Disputes Tribunal [2025] KEHC 18228 (KLR)**, where the Court held that leave should issue where the intended proceedings raise arguable issues warranting substantive determination. 2. Finally, the Applicants submit that extension of time is an equitable remedy and that the Applicants have laid a sufficient basis for the exercise of the Court's discretion by demonstrating that the delay was occasioned by circumstances beyond their control. Reliance is placed on **Aviation *&* Allied Workers Union Kenya *v* Kenya Airways Limited *&* 3 others [2015] eKLR**, which adopted the principles in **Nicholas Kiptoo Arap Korir Salat *v* IEBC *&* 7 others** **[2014]** **KESC 12 (KLR)** **(Civ) (4 July 2014) (Ruling),** that extension of time is discretionary and will be granted where an applicant satisfactorily explains the delay. The Applicants accordingly urge the Court to allow the application. Respondent’s Submissions 1. The Respondents submit that the Notice of Motion is incompetent, misconceived and an abuse of the court process. They contend that the Applicants seek leave to file an application for adoption and enforcement of the Public Service Commission (PSC) decision without exhibiting a competent substantive application, and that the Court cannot grant leave in respect of a non-existent application. It is further submitted that under section 89 of the Public Service Commission Act, a PSC decision must first be adopted as a judgment of the Employment and Labour Relations Court before it can be enforced, and the Applicants cannot circumvent that statutory procedure. 2. The Respondents further submit that the Court is *functus officio* by virtue of its ruling delivered on 18th February 2026 in **Kisumu Judicial Review Miscellaneous Application No. E021 of 2025**, in which the Applicants' enforcement application was struck out after the Court held that the PSC decision could not be enforced without first being adopted as a judgment of the Court. They contend that the Applicants are seeking to re-open issues that have already been determined. In support of this argument, they rely on **Gaichu *v* Tharaka Nithi County Government *&* another [2023] KEELRC 444 (KLR)**, where the Court held that it becomes *functus officio* upon finally determining a matter, and **Telkom Kenya Ltd *v* John Ochanda [2014] eKLR**, in which the Court of Appeal held that a party aggrieved by a final decision can only pursue an appeal and not invite the same court to revisit its determination. 3. The Respondents further submit that the Applicants have not established a sufficient basis for the grant of leave to file an application out of time. They assert that the PSC decision was delivered on 19th December 2024, that the Applicants have failed to satisfactorily explain the delay in seeking enforcement, and that their assertion that the delay was occasioned by the Respondents' review application and the judicial review proceedings is unpersuasive. Reliance is placed on **Aviation *&* Allied Workers Union Kenya *v* Kenya Airways Limited *&* 3 others [2015] eKLR** and **Nicholas Kiptoo Arap Korir Salat *v* IEBC *&* 7 others** (*supra*), for the principle that extension of time is an equitable and discretionary remedy which will only be granted where an applicants has laid a sufficient basis and demonstrated that the delay was not of their own making. 4. Lastly, the Respondents submit that even if leave were granted, the Applicants' draft application remains defective because it seeks substantive enforcement of a PSC decision that has not been adopted as a judgment of the Court. They maintain that while the Court has jurisdiction under section 89 of the Public Service Commission Act to adopt a PSC decision for purposes of enforcement, such jurisdiction can only be invoked through a properly instituted application. They accordingly urge the Court to dismiss the application with costs. Disposition 1. The application before me is not for grant. The Applicant in a sense is seeking to have this Court sit on appeal on its own decision. The matters before me are *res judicata* as this Court dealt with the issue of the enforcement of the PSC decision. I am *functus officio*. Application is dismissed with costs to the Respondents. It is so ordered. **Dated and delivered at Kisii this 28th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**