https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1701

Republic v Chairman, Board of Trustees Kenya Wildlife Services & 2 others; Ongwae (Ex parte Applicant) (Employment and Labour Relations Judicial Review E068 of 2025) [2026] KEELRC 1701 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1701 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Judicial Review E068 of 2025 JW Keli, J June 19, 2026 IN THE MATTER OF AN APPLICATION BY VINCENT ONYANCHA ONGWAE FOR ORDERS OF CERTIORARI, MANDAMUS, INJUCTION, PROHIBITION AND ANY OTHER APPROPRIATE RELIEF THAT IS JUST AND EQUITABLE BY THIS COURT, TO QUASH THE DECISION BY THE BOARD OF TRUSTEES, KENYA WILDLIFE SERVICES COMMUNICATED THROUGH A LETTER DATED 24TH SEPTEMBER 2025 AND REFERENCED KWS/Conf. 9334 (53) IN THE MATTER OF ARTICLE 10, 22, 23, 25 (C), 47, 48 & 50 (1) OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF SECTION 5 1(a), 5 (7), 10 (5) & 87 of the EMPLOYMENT ACT CAP 226 IN THE MATTER OF SECTION 3,4,7,8,9,10, 11 & 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4 OF 2015 Between Republic Applicant and The Chairman, Board of Trustees Kenya Wildlife Services 1st Respondent The Board of Trustees Kenya Wildlife Services 2nd Respondent The Director General Kenya Wildlife Services 3rd Respondent and Vincent Onyancha Ongwae Ex parte Applicant Judgment 1.The Ex Parte applicant pursuant to leave of the court granted by Hon. Mr. Justice Byram Ongaya on 04th November 2025 filed a substantive notice of motion application dated 5th November 2025, brought under Section 8(2) of the Law Reform Act, Cap 26 of the Laws of Kenya, Order 53, Rule 3 of the Civil Procedure Rules 2010 made under Cap. 21 of the Laws of Kenya and Part III of The Fair Administrative Action Act, No. 4 of 2015, Article 47 of the Constitution and all other enabling provisions of law seeking the following orders-a.That the court be pleased to issue an Order of Mandamus compelling the Respondents to reinstate the applicant to the rank of Senior Warden Grade "6".b.That the court be pleased to issue an Order of Prohibition restraining the Respondents and/or their agents and representatives from demoting the applicant from the rank of senior Warden Job grade "6" to Warden I, job grade "7".c.That the court be pleased to issue, an Order of Certiorari for purposes of quashing the decision made by the Respondents to demote the ex-parte applicant from the rank of senior Warden job grade "6 to Warden 1, job grade "7".d.That the court be pleased to issue an Order of Prohibition restraining the respondents from effecting the decision of the administrative appeal letter addressed to the applicant dated 24th September 2025.e.That the court be pleased to exercise its jurisdiction under Article 23 (3) of the Constitution to declare that the disciplinary action mete against the applicant through the appeal decision letter dated 24th September 2025 was unprocedural, unlawful and without legal basis.f.That such further and other relief that the Honorable Court may deem just and expedient to grant.g.That cost of and incidentals to this application be provided for, Grounds of the application 2.That at all material times, the applicant herein was an employee of Kenya Wildlife services holding the position of senior Warden at Job Grade "6" at Shimba Hills National Reserve. 2. That around May 2023, the 3rd Respondent allocated a supplementary budget to Shimba Hills National Reserve totaling Kenya Shillings five million (Ksh 5,000,000) for renovation of staff houses at. As such the ex-parte applicant was tasked with the function of overseeing the project. That in sheer display of competence and professionalism, the exparte applicant established a housing project committee to oversee the exercise "herein after referred to as the Project" and implement the renovations of staff houses in Shimba Hills National Reserve. 3.That while the project was ongoing, in utter shock and surprise, the exparte applicant received a show cause letter from the 3rd Respondent dated 27th March 2024 citing negligence on the part of the ex-parte applicant as the chair of the evaluation committee leading to shoddy work in implementation of the said project and irregularly awarding of tenders. Consequently, the ex-parte applicant responded through a letter dated 16th April 2024. 4.That since then, the matter went cold and silent, the exparte applicant was thereafter transferred from his duty station i.e Shimba Hills National Reserve to coast conservation area on 5th October 2023, all the while implementation of the project smoothly ongoing. That Consequently, the applicant handed over the ongoing project to the incoming senior warden on 13th October 2023, the handover which was properly received without any query and/or clarification required. 5.That in sudden twist of events and while implementation of the Project was ongoing, an investigation officer was sent to Shimba Hills National Reserve on 17th October 2023 to investigate the procurement and expenditure in the said project and to that effect, the applicant was asked to record a statement on 31st October 2023. That the applicant was thereafter invited to attend to a disciplinary panel through a letter dated b 27th August 2024, and in pre-determined sham process held on 04th September 2024, he was not given any evidence of misconduct on his part, oral and/or documentary to allow him to cross examine before the disciplinary panel could make a determination. 6.That in a bizarre twist of events, and following an unlawful, opaque and maliciously construed one sides mysterious investigation processes, the applicant was on 09th January 2025, issued with a discipline letter by the 3rd Respondent finding the applicant guilty of negligence as the chairperson of the procurement evaluation committee for failing to give guidance and leadership which led to poor planning and excess purchase of construction materials and likewise irregularly awarding of tender through direct procurement. 7.That to further compound the matter, the discipline letter informed the applicant of the 3rd Respondents decision to surcharge from his monthly salary half the amount believed to be value of the excessively purchased materials i.e Ksh 221,748.50. Without any legal basis and justifiable reason as to how it was concluded that out of all the members of the housing project committee, it is the applicant to be responsible for half the amount. That it was further recommended by the 3rd Respondent, that the applicant be demoted from the rank of senior Warden Job Group "6" to Warden I, job grade 7 with immediate effect. That the processes applied in reaching the aforementioned illegal decision was opaque, unprocedural and grossly violated the laws of Kenya as well as the Kenya wild life service, Human Resource, Policy and Procedures Manual. That despite being informed of his right to appeal against the decision within six (6) weeks, the Respondents unlawfully commenced implementation of the aforementioned illegal decisions and as such, the applicant was compelled to file a suit i.e ELRC JR case No: E034 of 2025 to prohibit 3rd Respondent from implementing the discipline pending the administrative appeal. That on 01st September 2024, the applicant appeared before the Respondents and/or their designate representatives for purposes of executing his appeal, and on 24th September 2025, the Respondents made a determination on the appeal. The Respondents decided to vacate the surcharge imposed but nevertheless decided to uphold the demotion of the applicant. That Consequently, the issues raised in ELRC JR No: E034 of 2025 had been duly dispensed with and leave was duly sought to institute these proceedings. That the Respondents failed to address issues related to procedural flaws and illegalities in the decision leading to the demotion of the applicant. That the Respondents, against the principals of fair hearing by introducing new allegations at appeal stage which led to the demotion of the applicant. That the Respondents overlooked material evidence presented during the appeal and reported the same as lacking and not shown which led to the demotion of the applicant. That the applicant shall continue to be subjected to emotional pain and suffering, loss of career opportunities, loss of earnings as well as shame and ridicule, should the decision of the administrative appeal be allowed to pass. That considering the unlawful, unreasonable and procedurally unfair process leading to the demotion, it is likely that unless the orders prayed for are granted the exparte applicant will continue to be subjected to emotional pain and suffering, loss of earnings as well as shame and ridicule for a considerable long period of time. 8.That the applicants Constitutional right to administrative action which expeditious, lawful and reasonable continues are at risk of being grossly violated. That it's in the interest of Justice that the orders sought are granted. 9.The Ex Parte Applicant filed a verifying affidavit dated 5th November 2025 where he exhibited documents in support of the application. Response 10.The respondents filed replying affidavit sworn by Vincent Makan Samoo on the 3rd December 2025 in opposition to the judicial review application. 11.The respondents further filed a Notice of Preliminary Objection dated 3rd December 2025 raising the following grounds of law-a.The ex-parte Applicant is a public officer as defined in Section 2 of the Public Service Commission Act Cap. 185.b.The Section 74 of the Public Service Commission Act Cap. 185, provides for the appeal process for public officers dissatisfied or affected by a decision made by an authorized officer or other authority in exercise of disciplinary control against the public officer.c.The Judicial Review Application herein is premature as it seeks to bypass the disciplinary appeal process as provided in the Public Service Commission Act Cap. 185.d.This Honourable Court does not have the jurisdiction to here and determine the Judicial Review application dated 5th November, 2025 for reasons that the application contravenes the doctrine of constitutional avoidance and exhaustion in dispute resolution. 12.The exaparte applicant filed grounds of opposition dated 13th January 2026 in opposition to the Notice of preliminary objection as follows-a.That the Judicial Review application herein is not an appeal.b.That Judicial Review is explicitly, fundamentally and legally different from an appeal.c.That the High court is clothed with exclusive supervisory jurisdiction by dint of Art 165 (6) and (7) of the Constitution of Kenya, 2010 to make any orders or give any directions it considers appropriate to ensure the fair administration of justice. Determination 13.The application and notice of preliminary objection were canvassed together, 14.The issues for determination in the suit were thus-a.Whether the notice of preliminary objection by the respondents had meritb.if above in negative- whether the judicial review application was merited. Whether the notice of preliminary objection by the respondents had merit 15.The respondent raised the following grounds of preliminary objection to the judicial review application –a.The ex-parte Applicant is a public officer as defined in Section 2 of the Public Service Commission Act Cap. 185.b.The Section 74 of the Public Service Commission Act Cap. 185, provides for the appeal process for public officers dissatisfied or affected by a decision made by an authorized officer or other authority in exercise of disciplinary control against the public officer.c.The Judicial Review Application herein is premature as it seeks to bypass the disciplinary appeal process as provided in the Public Service Commission Act Cap. 185.d.This Honourable Court does not have the jurisdiction to here and determine the Judicial Review application dated 5th November, 2025 for reasons that the application contravenes the doctrine of constitutional avoidance and exhaustion in dispute resolution. 16.The court discerned that the ExParte Applicant did not deny the existence of the appeal mechanism under section 74 of the Public Service Commission as he filed the following grounds of opposition – That the Judicial Review application herein is not an appeal. That Judicial Review is explicitly, fundamentally and legally different from an appeal. That the High court is clothed with exclusive supervisory jurisdiction by dint of Art 165 (6) and (7) of the Constitution of Kenya, 2010 to make any orders or give any directions it considers appropriate to ensure the fair administration of justice. 17.Section 74 of the Public Service Commission Act states as follows-‘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.(2)An appeal under subsection (1) shall be made in writing within ninety days from the date of the decision appealed against: Provided that the Commission may consider an appeal that was made out of time if, in the opinion of the Commission, the circumstances warrant such consideration.(3)The Commission shall not entertain an appeal by a public officer or a representative of a public officer, in respect of a particular decision, more than once.(4)Despite the right of appeal conferred on a public officer by this section, disciplinary action shall not be deferred or suspended pending the determination of the appeal.(5)After considering an appeal, 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.(6)Where the Commission sets aside a decision under subsection (5)(b), the public officer shall revert to the previous status held and receive the attendant benefits as though the decision set aside was never made.’ Section 75of the Act provides for review. 18.The exparte applicant’s position is that the Judicial Review application herein is not an appeal. The Judicial Review is explicitly, fundamentally and legally different from an appeal. The High court is clothed with exclusive supervisory jurisdiction by dint of Art 165 (6) and (7) of the Constitution of Kenya, 2010 to make any orders or give any directions it considers appropriate to ensure the fair administration of justice. 19.The respondents submitted as follows- Section 74 (1) of the Public Service Commission Act Cap. 185 states, 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. That by making this Judicial Review application, the Applicant seeks to subvert the elaborate appeal process for public servants and avoid the lawfully provided administrative process for handling the disciplinary matters within the public service. That the Applicant seeks to undermine the provisions of Section 9 (1), (2) and (3) of the Fair Administrative Action Act which states, (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). It is our humble submission that the appeal process for public servants as provide in Section 74 of the Public Service Commission Act Cap. 185 has not been exhausted and therefore the Applicant cannot seek for orders of judicial review as provided in Section 9(2) of the Fair Administrative Action Act. That the Judicial Review Application herein is premature and offends the doctrine of exhaustion. It is only until all the mechanisms provided by law are extinguished that the Applicant can seek for orders of judicial review if dissatisfied by the outcome. The respondent relied on the decision in Kenya Union of Clinical Officers v Kajiado County Public Service Board & another (Cause E483 of 2023) [2023] KEELRC 3392 (KLR) (20 December 2023) (Ruling), where the Honourable Court in making a finding that it did not have jurisdiction to hear and determine a matter that had not been subjected to the Public Service Commission Act, Cap. 185 appeal process rendered itself thus, “On this issue, I gather support from the determination by the Court of Appeal in the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR thus; “ …where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime…In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance.” 21. I fully adopt and reiterate the position taken by the Learned Judges of the Court of Appeal and redirect the Claimant to first seek redress within the established dispute resolution mechanism in the Public Service Commission.” Further in Watila v Kenya Accountants and Secretaries National Examination Board (KASNEB) & another (Employment and Labour Relations Petition E186 of 2024) [2025] KEELRC 3351 (KLR) (27 November 2025) (Judgment) where Nduma Nderi, J as he then was stated, “The Petitioner herein did not await the internal process to conclude so as to avail himself of the internal appeal process and a further appeal to the Public Service Commission in line with section 74(1) of the Public Service Commission Act, 2017 which provides that: - “Any person who is dissatisfied or affected by an appeal’s decision made by an authorized officer or other authority exercise or purported exercise of disciplinary control against any public officer under this Act may appeal to the Commission.” It is the court’s considered finding that the petition was brought prematurely and the Petitioner avoided the doctrine of exhaustion of internal remedies and the appeal processes, available to all public officers.” 20.The respondent contended that the Judicial Review application seeks to compel the Respondents to reinstate the Applicant to his previous rank, prohibit the Respondents from demoting the Applicant pursuant to disciplinary proceedings held on 1st September, 2025 among other orders. It is evident that the Applicant is dissatisfied with the decision of the Respondents to demote him for acting negligently in the performance of his duties. That in view of his apparent dissatisfaction, the exparte applicant’s recourse lies with the Public Service Commission as provided in Section 74 of the Public Service Commission Act Cap. 185. The Applicant must be estopped from bring an appeal before this Honourable Court disguised as an application for Judicial Review. It is our submission that the application herein is premature rendering this Honourable Court incapable of hearing and determining it. 19.Conversely the exparte applicant submitted as follows-Is the applicant seeking to appeal the impugned administrative appeal through this Judicial Review proceedings? and consequently, does a Judicial Review application amount to a judicial appeal? The straight response is NO, Judicial review is a supervisory Jurisdiction of the High Court established under Art 47 (3) of the Constitution 2010. This Supervisory Jurisdiction for purposes of ensuring fair administration of Justice is further proclaimed under Art 165 (6) and (7) of the Constitution 2010. The legal basis that grants the applicant the right to seek Judicial Review is the Constitution of Kenya 2010. It is reiterated that Judicial review looks at the legality of the process in arriving at a decision and not the merits and demerits of the decision. To this extent, the Respondents in their submissions have delved on addressing the merits or lack of, in the outcome of the administrative appeal, the same which ought not to be entertained by the Honorable court for lack of Jurisdiction. The applicant further submits that the purview of the instant Judicial review application is constrained to the determination as to whether, the processes during the administrative hearing met the threshold set out under Art 47 of the Constitution of Kenya i.e that the administrative procedures ought to be expeditious, efficient, lawful, reasonable and procedurally fair? . In this regard, the Honorable court ought to be extremely reluctant to look at the merits and demerits of the outcome of the administrative hearing, but rather constrain itself to the process in arriving at the decision. In Judicial Service Commission & another v Mutava & another [2015] KECA 741 (KLR), W Ouko J stated; Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair 5 administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, To this extent, Fair Administrative Action ought to be complied with to the latter. It is nugatory and frivolous for the Respondent to put the court in a trifle academic exercise of making a distinction between Judicial review and judicial appeal both which are administered under different legal regime. The maxim “De Minimis Non Curat Lex” contends that "the law does not concern itself with trifles". It is the submission of the applicant that the Honorable court ought to dismiss the Respondents argument that the said suit is an appeal and not a Judicial review application as it is simply too trivial to warrant the Honorable court time. Needless to say the matter herein was substantively and administratively filed as a Judicial review application and not a Judicial appeal More so where there was clear legal breach in the procedures arriving at an administrative decision. It is reiterated that Judicial Review does not look whether the decision was right or wrong rather what the process which arrived at the decision is. It is also worth putting to pen that judicial review is an exclusive function of the court and no other administrative body. In Republic v Dedan Kimathi University of Technology Ex-parte Juma Ombolo Simon [2016] eKLR, Mativo J held that; “Judicial review is not the same as an appeal. An appeal exists when a statute provides that a decision can be appealed to a court. In an appeal a judge will more clearly review the merits of the earlier decision. Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision” It is the humble prayer of the applicant that the court be extremely adamant to be taken down a “rabbit hole” of Judicial review vs appeal process as the same is merely vexatious and with bad intentions. The suit herein is a Judicial Review application and not an appeal. 2. Is the Public Service commission empowered by the Constitution of Kenya 2010, and all enabling legislations to hear and determine Judicial Review applications and consequently does the applicant have any Judicial Review recourse under the Public Service Act? The Supervisory Jurisdiction for purposes of ensuring fair administration of Justice is further proclaimed under Art 165 (6) and (7) of the Constitution 2010. The legal basis that grants the applicant the right to seek Judicial Review is the Constitution 6 of Kenya 2010. Under the said article, the High court has inherent powers to issue any orders or directions it deems appropriate to ensure the fair administration of justice. This is merely to state that in the instant Judicial Review application, the Honorable court has every jurisdiction to ensure the fair administration of justice. My Lady, section 9 (1) of the Fair Administrative Action Act, 2015 expressly and exclusively grants the powers to hear and determine Judicial review to the High Court or subordinate court upon which original jurisdiction is conferred pursuant to Art 22(3) of the Constitution. To this extent, the Public Service Commission is not clothed with any powers to hear and determine Judicial Review applications. In Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR – the Supreme Court held that a court's jurisdiction flows from the Constitution or statute and cannot be assumed or conferred by convenience. Nowhere was it ever anticipated by the Constitution of Kenya, 2010, that supervisory jurisdiction of administrative excesses and overreach shall lie with another administrative body known as the Public Service Commission. It is therefore the humble submission of the Applicant that there is no Judicial review recourse by the Applicant which lies before the Public Service commission. In this regard the Honorable court is invited to find that the submission by the Respondent that that the applicant should seek judicial review in the Public Service Commission is unconstitutional. As such, the Public Service commission does not possess any powers, legal or otherwise to hear and determine Judicial Review applications and the Honourable court is invited to declare as such. Decision on the Notice of Preliminary Objection 21.Fortunately for this court, the Court of Appeal has been faced with a similar scenario and determined the issue of jurisdiction of the court in judicial review suits where there exists an alternative dispute resolution mechanism under statute in Secretary, County Public Service Board & another v Abdille [2017] KECA 643 (KLR) where the High Court held it had jurisdiction in a judicial review application in a case where the jurisdiction over county public service employment disputes was legislated to be with the Public Service Commission under section 77 of the County Governments Act. The Court of Appeal held the trial Judge at High Court lacked jurisdiction in the Judicial review application that questioned the process just like in the instant case. The Court of Appeal held-‘There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it. It does not also matter that an applicant in judicial review proceedings need not exhaust all other available remedies. The invocation of judicial review jurisdiction of the court was in the circumstances premature and uncalled for. The first ground of appeal therefore succeeds. The appeal accordingly is allowed, the judgment and decree of the High Court dated 17th July, 2015 is set aside and in lieu thereof we order that the Notice of Motion dated 16th July, 2014 be and is hereby dismissed with costs. The respondent shall also bear the costs of this appeal.’ This court finds that the foregoing Court of Appeal decision covers all grounds of opposition raised by the Exparte Applicant. Section 74 of the Public Service Commission has provided for an appeal process for the instant dispute as follows-‘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.(2)An appeal under subsection (1) shall be made in writing within ninety days from the date of the decision appealed against: Provided that the Commission may consider an appeal that was made out of time if, in the opinion of the Commission, the circumstances warrant such consideration.(3)The Commission shall not entertain an appeal by a public officer or a representative of a public officer, in respect of a particular decision, more than once.(4)Despite the right of appeal conferred on a public officer by this section, disciplinary action shall not be deferred or suspended pending the determination of the appeal.(5)After considering an appeal, 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(6)Where the Commission sets aside a decision under subsection (5)(b), the public officer shall revert to the previous status held and receive the attendant benefits as though the decision set aside was never made.’’ The Exparte applicant is challenging the disciplinary process and demotion, interalia, through the judicial review. Demotion is a disciplinary decision as envisioned in section 74(1) thus-‘(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.’ 22.I upheld the decision in Secretary, County Public Service Board & another v Abdille [2017] KECA 643 (KLR), the facts being similar and the decision being binding on this court to apply in the instant case. I thus uphold the Notice or Preliminary Objection dated 3rd December 2026 and hold the instant suit offends the doctrine of exhaustion and is premature. The court invokes the jurisdiction of the Public Service Commission under Section 74 of the Public Service Commission. Act. Ideally, on finding sufficient alternative statutory mechanism and the same having been skipped, the court should strike out the suit. It was held in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) that – ‘In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.’ However Rule 56(5)(c ) of the Employment and Labour Relations Court (procedural) Rules, 2024 states- ‘(5)Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms(c)a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.’ Consequently, the suit is stayed as per the Rule and the Ex Parte Applicant, ordered to file an appeal before the Public Service Commission in compliance with section 74 of the Public Service Commission Act. Mention on 30th July 2026 to confirm compliance and for further orders of the court. Costs in the cause. 23.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: OtienoPetitioner- absentRespondents- Thirikwa h/b Ms FeksiExparte Applicant- Akedi Advocate