https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1311

Republic v Kirinyaga County Public Service Board; Kenya Union of Clinical Officers (Ex parte Applicant) (Judicial Review Cause E008 of 2025) [2026] KEELRC 1311 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1311 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Judicial Review Cause E008 of 2025 SC Rutto, J May 15, 2026 IN THE MATTER OF AN APPLICATION BY KENYA UNION OF CLINICAL OFFICERS FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AGAINST THE KIRINYAGA COUNTY PUBLIC SERVICE BOARD AND IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS CAUSE MISC. NO. E002 OF 2021AT THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI AND IN THE MATTER OF THE CERTIFICATE OF ORDER AGAINST THE GOVERNMENT AS ISSUED BY THE DEPUTY REGISTRAR AT NYERI ON 23RD SEPTEMBER 2025 IN THE EMPLOYMENT AND LABOUR RELATIONS CAUSE MISC. NO. E002 OF 2021 Between Republic Applicant and Kirinyaga County Public Service Board Respondent and Kenya Union of Clinical Officers Ex parte Applicant Ruling 1.The Ex-parte Applicant has moved the Court by way of a substantive Notice of Motion dated 17th November 2025, seeking the following orders:1.That an order of Mandamus do issue compelling the Kirinyaga County Public Service Board, the Respondent herein to comply with the decree of this Honourable Court given on 9th August 2024 and adopted as a certificate of order against the Government issued by this Court on 23rd September 2025 in Nyeri ELRC Misc. Cause No. E002 of 2021- Kenya Union of Clinical Officers vs Kirinyaga County Public Service Board, Public Service Commission of Kenya, and the Hon. Attorney General.2.That the cost of this application be provided for on full indemnity basis. 2.The substantive Motion is supported by a Statutory Statement of Facts and an Affidavit sworn on 14th October 2025 by George Maroah Gibore, the General Secretary of the Ex parte Applicant. 3.The Ex parte Applicant avers that it is the holder of a valid certificate of order against the Respondent, issued on 23rd September 2025 by the Registrar of this Honourable Court in Nyeri ELRC Misc. Cause No. E002 of 2021 – Kenya Union of Clinical Officers v Kirinyaga County Public Service Board, Public Service Commission of Kenya, and the Hon. Attorney General. 4.The Ex parte Applicant further states that, notwithstanding service of the said certificate of order upon the Respondent, the Respondent has remained in breach of the court order by failing to implement the decision of the Public Service Commission dated 14th April 2021 in County Appeal No. 03/20/2021. 5.It is contended that more than one year has elapsed since the decree was issued in Nyeri ELRC Misc. Cause No. E002 of 2021, yet the Respondent has failed to comply with its terms. The Ex parte Applicant further avers that the Respondent’s inaction has frustrated its legitimate expectation that the court’s decree would be obeyed. 6.Upon being served with the Notice of Motion, the Respondent filed a Notice of Preliminary Objection dated 8th December 2025 premised on the following ground:1.That this Honourable court lacks the requisite jurisdiction to entertain the Application herein by virtue of Section 12(3) of the Employment and Labour Relations Court Act 2011. 7.The Respondent further filed a Replying Affidavit sworn on 8th December 2025 by Carolyne Kinyua, its County Attorney and Legal Advisor. Ms. Kinyua contends that the members of the Ex parte Applicant were lawfully and procedurally terminated in 2019 following their participation in an unlawful and unprotected strike. 8.She avers that, subsequent to the said termination, the Respondent competitively recruited other health officials to fill the resultant vacancies. She further states that the members of the Ex parte Applicant have remained out of employment for a period of seven (7) years. 9.Ms. Kinyua deposes that the decree issued by this Court on 9th August 2024 is incapable of implementation, as it would result in the Respondent maintaining two (2) parallel sets of employees. 10.She further avers that the Respondent operates within a strict budget approved by the national government, which cannot accommodate two (2) sets of employees. She adds that, being in the midst of a financial year, no adjustments can be made to absorb an additional workforce at this stage. 11.Ms. Kinyua also deposes that the Respondent has challenged the judgment and decree of this Court dated 9th August 2023, and that the Appeal is currently pending before the Court of Appeal. She contends that granting the orders sought would render the Appeal nugatory. She further notes that, in a Ruling delivered on 28th February 2025, the Court of Appeal observed that the intended appeal is arguable and deserving of determination on merit. 12.She adds that reinstatement constitutes a final remedy and, should the Appeal succeed, the Respondent would be unable to effectively implement the appellate court’s decision. 13.According to Ms. Kinyua, there is an overriding public interest at stake, and she urges the Court to balance individual rights against the broader public good and orderly administration. 14.In response to the Respondent’s Replying Affidavit, the Ex parte Applicant filed a Supplementary Affidavit sworn by George Gibore. He deposes that the orders sought in the substantive Motion fall squarely within this Court’s jurisdiction pursuant to Section 13 of the Employment and Labour Relations Court Act. 15.He avers that on 14th April 2021, the Public Service Commission allowed the Applicant’s appeal, finding that the disciplinary process against its members was irregular, unfair, and unlawful, and consequently ordered their reinstatement. 16.Mr. Gibore further states that the Respondent failed to comply with that decision, prompting the Applicant to move this Court in Nyeri ELRC Misc. No. E002 of 2021 for its enforcement. He adds that, in the course of those proceedings, the Respondent filed an application in Nyeri ELRC Misc. No. E003 of 2021 seeking orders of certiorari to quash the decision of the Public Service Commission. 17.Mr. Gibore further avers that on 9th August 2024, the Court dismissed the Respondent’s application for failing to meet the legal threshold for review of an administrative action, and proceeded to adopt the decision of the Public Service Commission as a decree of the Court. 18.He deposes that upon delivery of the judgment on 9th August 2024, the Respondent was granted a stay of execution for 60 days and leave to appeal. He contends that no appeal was filed within that period and that instead, on 28th August 2024, in Nyeri ELRC JR No. E003 of 2023 and on 9th October 2024 in Nyeri ELRC Misc. No. E002 of 2021, the Respondent filed applications seeking a stay of execution pending the intended appeal. He avers that both applications were dismissed in a judgment delivered on 23rd January 2025. 19.Subsequently, the Respondent filed applications before the Court of Appeal seeking enlargement of time to lodge an appeal, as well as orders for stay of execution. 20.Mr. Gibore further avers that the Respondent’s conduct has prejudiced the Ex parte Applicant’s members, who continue to suffer as they are unable to secure alternative employment owing to their prior dismissal by the Respondent. Submissions 21.The Respondent’s Preliminary Objection was canvassed by way of written submissions. On the part of the Respondent, it is submitted that this Court lacks jurisdiction to grant the orders sought. Relying on Section 12(3)(vii) of the Employment and Labour Relations Court Act, the Respondent has argued that orders of reinstatement may only be issued within three (3) years of dismissal. It is the Respondent’s contention that the lapse of more than seven (7) years since the dismissal of the Applicant’s members ousts the Court’s jurisdiction. In support of this position, the Respondent has relied on the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2021] eKLR. 22.Placing reliance on the case of Republic v Kenya National Examination Council ex parte Gathenji [1997] eKLR, the Respondent has further submitted that this Court lacks jurisdiction to issue an order of mandamus in the circumstances of this case. 23.The Respondent further submitted that no vacancies exist, as the positions were filled in 2019 following the termination of the Ex parte Applicant’s members, thereby rendering reinstatement impracticable. 24.On its part, the Ex parte Applicant has submitted that the Respondent is not subject to any court order staying or otherwise suspending its obligation to comply with this Court’s orders issued on 9th August 2024. 25.Citing the decision in Sella Rose Anyango v Attorney General & 2 others [2021] eKLR, the Ex parte Applicant has argued that the Respondent’s Preliminary Objection raises a mixture of legal and factual issues, thereby necessitating interrogation by the Court. Consequently, it is contended that the objection does not meet the threshold of a pure preliminary objection and ought to fail. 26.The Ex parte Applicant further submits that the Respondent, being a public body, is not amenable to ordinary modes of execution, and that an order of mandamus remains the only viable mechanism for enforcing the judgment. In support of this position, reliance has been placed on the cases of Muciimi Mbaka & Co. Advocates v Town Clerk, City Council of Nairobi [2012] eKLR and Republic v The Attorney General & Another ex parte James Alfred Kosoro. Analysis and Determination 27.In its Preliminary Objection, the Respondent contends that this Court lacks jurisdiction to entertain the Applicant’s Motion by virtue of Section 12(3) of the Employment and Labour Relations Court Act (ELRC Act). 28.In support of this position, the Respondent submits that the Applicant’s members have been out of employment for a period of seven (7) years, which exceeds the three-year limitation prescribed for reinstatement under Section 12(3)(vii) of the ELRC Act. 29.Section 12(3)(vii) of the ELRC Act empowers the Court to order reinstatement of an employee within three (3) years of dismissal, subject to such conditions as it may deem appropriate. 30.A proper construction of the foregoing provision indicates that it applies to instances where the Court, upon hearing a matter on its merits, issues an order of reinstatement. 31.In the present case, however, the record bears that the order of reinstatement was made by the Public Service Commission on 14th April 2021, on the basis that due disciplinary process had not been adhered to and no rebuttal was given to challenge the claim. 32.Subsequently, by an order issued on 9th August 2024, this Court recognized and adopted the decision of the Public Service Commission as a judgment of the Court. 33.It follows, therefore, that the relief presently sought is not a fresh order of reinstatement, but rather an order of mandamus to compel the Respondent to comply with the decision of the Public Service Commission as adopted by this Court. 34.In the circumstances, the Court finds that Section 12(3)(vii) of the ELRC Act is inapplicable to the present case and it cannot be said that this Court lacks jurisdiction to hear and determine the substantive Motion as filed. 35.Accordingly, the Respondent’s Preliminary Objection dated 8th December 2025 is hereby overruled with no orders as to costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY 2026………………………………STELLA RUTTOJUDGEIn the presence of:For the Ex parte Applicant Ms. Kaburu instructed by Mr. AtakaFor the Respondent Ms. SmallCourt assistant NdatiOrderIn 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