Republic v Principal Secretary, State Department for Internal Security & National Administration & 5 others; Osman (Ex parte Applicant) (Judicial Review Application E001 of 2026) [2026] KEELRC 2206 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT GARISSA** **JUDICIAL REVIEW APPLICATION NO. E001 OF 2026** **REPUBLIC APPLICANT** *VERSUS* **THE PRINCIPAL SECRETARY, STATE DEPARTMENT FOR INTERNAL SECURITY & NATIONAL ADMINISTRATION 1ST RESPONDENT** **COUNTY COMMISSIONER MANDERA COUNTY 2ND RESPONDENT** **DEPUTY COUNTY COMMISSIONER,** **MANDERA EAST SUB-COUNTY 3RD RESPONDENT** **PUBLIC SERVICE COMMISSION 4TH RESPONDENT** **ATTORNEY GENERAL 5TH RESPONDENT** **AND** **ABEY ABDINOOR OSMAN EX PARTE APPLICANT** **AND** **ABDILADIF KASSIM MOHAMMED INTERESTED PARTY** **JUDGMENT** There are two applications addressed herein, one dated 24 April 2026 filed by the Ex parte applicant and one dated 26 May 2026 filed by the interested party. The ex parte applicant filed his application dated 24 April 2026 seeking Orders: 1. *An order of certiorari quashing the decision contained in the letter dated 10 February 2026 appointing the interested party, Abdilatif Kassim Mohamed, as chief, Gingo Location, Khalalio Division, Mandera East Sub County.* 2. *An order of prohibition prohibiting the respondents, whether by themselves, their servants, agents, officers or any persons acting under their authority from implementing, continuing to implement, confirming, acting upon, or in any manner whatsoever giving further effect to the said appointment of the interested party as chief, Gingo Location.* 3. *An order of mandamus compelling the respondents to undertake a fresh, lawful, fair, transparent, and merit-based recruitment and appointment process for the position of chief, Gingo Location, Khalalio Division, Mandera East Sub County in strict compliance with the constitution, the applicable advertisement and re-advertisement notices, the Scheme of Service for National Government Administrative Officers (2015), and the Ministry of Interior and National Administration circular dated 3 May 2023.* 4. *Spent.* 5. *Costs of the proceedings.* The ex parte applicant filed his application in support of the application and on the grounds that the appointment of the interested party as chief, Gingo Location, Khalalio Division, Mandera East Sub County, was contrary to the mandatory minimum qualifications set out in the re-advertisement notice dated 5 August 2024. The interested party did not meet the minimum age requirement of 35 years and above and was therefore not legally eligible for appointment. The interested party further did not meet the mandatory academic qualification of possessing a KCSE certificate with a minimum C (Plain) as at the application deadline under the re-advertisement notice. The ex parte applicant averred in his Affidavit that the respondents acted in breach of the Ministry of Interior and National Administration’s circular dated 3 May 2023, which required strict adherence to the prescribed recruitment criteria and directed that preference be given to serving assistant chiefs with satisfactory performance, discipline and integrity. The respondents failed to take into account the relevant and material considerations of the office of the Chief, Gingo Location, Khalalio Division, Mandera East Sub-County, which had been under an acting chief following the former chief's retirement. The applicable circular gave preference to the serving assistant chiefs with a satisfactory record. Before the appointment of the interested party, written objections had been raised regarding his qualifications. The repeated postponement and re-advertisement of the vacancy objectively appear to have been designed to accommodate the interested party despite a lack of qualifications. The ex parte applicant thus avers that the serving assistant chiefs of Gingo, Darika and Meygag sub-location jointly raised formal written objections on 25 September 2024 on the proposed recruitment of the interested party, including objections relating to age, academic qualifications and fairness of the process, but the respondents proceeded to appoint him as the chief. The appointment was made in disregard of material considerations and in breach of the published recruitment criteria. This violates articles 10 and 232 of the Constitution, which call for legality, fairness, accountability, fair competition, and integrity. The decision to appoint the interested party is unlawful, unreasonable, and procedurally unfair, in violation of article 47 of the Constitution and sections 4, 6, 7, and 11 of the Fair Administrative Action Act. The decision is thus amenable to judicial review, and concerned members of the public directly affected by the appointment's eligibility will suffer prejudice. Hence, the orders sought should be issued. In reply, the 1st, 2nd, and 3rd respondents filed the Replying Affidavit of Rashid Were, the Deputy County Commissioner, Khalalio Sub-County, Mandera East and the 3rd respondent, who aver that he has authority from the 1st and 2nd respondents to reply herein. The respondents oppose the application. Rashid aver that the position of Gingo Location, Khalalio Division, Mandera East Sub County fell vacant upon the retirement of the former chief on 30 June 2023. The vacant position was advertised on 12 February 2024 but failed to attract suitable candidates who met the set criteria. It was thus re-advertised, and there were no qualified applicants. This prompted the Ministry of Interior and National Administration, through the respondents, to re-advertise the position a third time on 26 April 2024 and 5 August 2024. The Ministry struggled to fill the vacant position because no suitable candidates applied. Among the reasons were age and academic qualifications. Through a letter dated 23 September 2024, the office of the Deputy County Commissioner wrote to the Principal Secretary, State Department for Internal Security and National Administration, seeking a waiver for the age requirement. The letter was supported by the minutes of the shortlisting panel for the re-advertisement of the post of Chief, Gingo Location, and Kamor Elle sub-location, held on 6 September 2024, having analysed the applicants in the two locations inhabited by minority corner tribes. Despite the position being advertised several times without attracting suitable candidates, the panel decided to consider those with academic qualifications who did not meet the age requirement under the scheme of service and agreed to request an age-grade waiver from the authorised officer. Rashid avers that the 4th respondent, Public Service Commission (PSC), through an advisory opinion dated 11 March 2024, wrote to the Principal Secretary, State Department for Internal Security and National Administration, advising on the removal of the age requirement for appointment to the position of Chief II as provided in the revised Scheme of Service for National Government Administrative Officers, October 2025. Rashid avers that it is not correct that the re-advertisements were issued to accommodate the interested party, as alleged by the ex parte applicant, who is the son of the retired former Chief, and that he lacked the mandatory academic qualifications and had not attained the prescribed age. The recruitment adhered to the requirements set out in the advertisement on 5 August 2024, where no applicant met the requisite qualifications, including Abdibashir Haji Abdiwahit, who was the acting chief for Gongo location pending the recruitment process. From the advertisement, there were 13 applicants. Rashid avers that Abdibashir Haji Abdiwahit did not possess the KSCE certificate or its equivalent or any computer application skills from a recognised institution. Following the re-advertisement on 5 August 2024, the position of Chief, Gingo location, had 13 applicants; 9 were shortlisted, and 7 turned up for the interview held on 17 September 2024. The interested party was shortlisted following the re-advertisement, and he attached a KCSE certificate with a C (Plain) for the year 2022. The interested party met the qualifications per the requirements in the advertisement notice, save for the age limit. Following the interview, the names of the top 3 candidates were forwarded to the Principal Secretary, State Department for Internal Security and Administration, for appointment in order of priority, with a recommendation to appoint the interested party, as the other 2 candidates had adverse recommendations from the National Intelligence Service. The recruitment process was conducted professionally and transparently. Following a successful recruitment process, the interested party was appointed Chief, Gingo Location, Khalalio Division, Mandera East Sub-County. He was offered the position through a letter dated 10 February 2026. On 16 February 2026, the interested party accepted the appointment. He reported for duty and assumed office on 16 February 2026, and continues to perform his duties as Chief. Rashid avers that by the time the court order was issued herein on 22 May 2026, directing the interested party not to assume office, he had done so on 16 February 2026. The orders herein should thus be set aside since events have overtaken the orders. The ex parte applicant misled the court in this regard. He had no evidence demonstrating that the interested party had not assumed office and should not be allowed to enjoy interim orders for lack of full disclosure. The allegations made against the respondents are without basis and intended to mislead the court into granting orders that are already overtaken by events. Due to such misrepresentation, the application should be dismissed with costs. The 4th respondent, PSC, filed the Replying Affidavit of Paul Famba, the secretary and CEO, who avers that the PSC, as established under Article 233 of the Constitution, has the mandate to appoint persons to hold or act in public office. Article 234(5) of the Constitution allows for the delegation of the functions and powers of the PSC, which was done by delegation to the respondent to conduct interviews for the appointment of the Chief, Gingo Location. The ex parte applicant has challenged the appointment of the Interested Party as Chief, Gingo Location, in a letter dated 10 February 2026, on the grounds that the position was advertised and re-advertised several times to accommodate the appointed candidate. That the appointed candidate lacked the minimum qualifications for the position and that the recruitment and appointment of the interested party did not adhere to the Ministry of Interior circular dated 3 May 2023. The impugned circular directed that the recruitment of chiefs and assistant chiefs be undertaken in accordance with the prescribed criteria and the Scheme of Service for National Government Administrative Officer (2015). The circular also directed that the appointment of chiefs be given preference to serving assistant chiefs with satisfactory performance records. Famba avers that the allegations that his interested party, who was appointed chief, is unqualified are incorrect. He scored a mean grade of C (Plain) in KCSE, and there is evidence to support this fact. On the age limit of 35 years set out in the advertisement, the PSC issued a circular to the Principal Secretary, State Department for Internal Security and National Administration, dated 11 March 2024, where the PSC deleted the age requirement for appointment to the position of Assistant Chief II and Chief I as provided for in the Revised Scheme of Service for National Government Administrative Officers of October 2015. The basis of the circular is that it is contrary to Article 27(4) of the Constitution, which prohibits discrimination based on, among other issues, age. The requirement of an age limit was thus found to be unconstitutional. Famba avers that the PSC has no evidence from the applicant to prove that the re-advertisements were intended to accommodate the interested party, as alleged. There is also no evidence from the applicant to prove that the interested party is the son of the retired chief. The orders sought are not justified and should be dismissed with costs. The interested party filed his replying Affidavit and avers that, in August 2024, he came across a re-advertisement for the post of Chief, II Gingo location. He submitted his application together with the necessary certificates on 13 August 2024. The application was considered, and he was invited to attend an interview on 17 September 2024. The interested party avers that on 10 February 2026, he received the offer letter for the position of Chief at the Gingo location and accepted it. He reported to work and assumed office. The acting chief, before assuming office, vacated the office. The ex parte applicant is aware of these facts but misled the court into granting interim orders. The basis of the ex parte applicant's application is that he is under 35 years of age and thus not fit for the job, which is discriminatory under Article 27(4) of the Constitution. The assertion that he has not attained the required possession of certificates is incorrect, since he holds a C (Plain) in KCSE. The assertion by the ex parte applicant that recruitment for the position of Chief Gingo Location has been postponed several times to accommodate the interested party is incorrect, as he applied within the allowed timelines and was not appointed until 10 February 2026. Other candidates were also shortlisted and interviewed. His appointment was as required under the constitution and the law, and by the respondents' policies and regulations. The ex parte applicant has not submitted any evidence that he is the son of the retired chief as alleged. The interested party avers that the ex parte applicant obtained the orders herein without full disclosure and should not benefit from such abuse of court process, and that events have overtaken the orders sought and should be declined, with the application herein dismissed. In the application by the interested party dated 26 May 2026, he seeks orders that the interim orders granted on 22 May 2026, directing him not to assume office, as per the letter dated 10 February 2026, be stayed, set aside, or vacated, as he has since assumed office. The interested party filed his affidavit in support of the application and avers that the ex parte applicant moved the court herein and obtained orders on 22 May 2026, holding that he should not assume office following his appointment on 10 February 2026. The ex parte applicant impressed upon the court that the position of Chief, II Gingo location, was still vacant, which was incorrect. The interested party assumed the position of Chief on 16 February 2026, and the acting assistant chief vacated the office. To allow the continued application of the interim orders will deny the people of Gingo location the service of a chief. This will deny them essential public administrative services, contrary to the public interest and good governance. The interim orders were issued without affording the interested party a hearing, contrary to Article 50 of the Constitution. The interim orders should be set aside with costs. There is no reply to this application. The ex parte applicant filed his Further Affidavit and avers that the respondents' responses are not correct to the extent that the alleged failure to attract any person who met the advertised qualifications for the position of Chief Gingo location is not as presented. The records on file show that Andirahman Hussein Kahiya applied for the position and met the mandatory qualifications. He is 39 years old, attained C (Plain) in KCSE, and holds certificates in computer studies and human resource management. From the records, at least one person met the criteria for appointment. The respondents were thus bound under the advertised criteria for Chief II, Gingo location. Where it was found necessary to remove the age limit, there ought to have been a re-advertisement to allow all qualified persons to apply. The removal of such criteria was not transparent. The ex parte applicant avers that the directive to give preference to serving assistant chiefs with a satisfactory track record of performance, discipline, and integrity was not addressed. This left the entire recruitment process devoid of integrity and accountability, and the appointment of an interested party should be quashed. Parties attended court and highlighted their submissions. These are considered and analysed in the findings. **Determination** In the two applications dated 24 April 2026 and 29 May 2026, the ex parte applicant seeks an order of certiorari to quash the appointment of the interested party as Chief Gingo Location, effected by a letter dated 10 February 2026. He also seeks an order of prohibition preventing the implementation of the appointment letter, and an order of mandamus compelling the respondent to undertake a fresh recruitment process for the position. On the other hand, the interested party seeks to have the internal orders barring him from assuming office at the Chief Gingo location vacated on the ground that they were obtained after the fact of his assuming office, and that the ex parte applicant did not disclose these material facts to the court. Judicial review jurisdiction is the power granted to courts to review the lawfulness of an enactment or decision, action, or failure to act in relation to a public function. The Court of Appeal in **Grain Bulk Handlers Limited v J. B. Maina & Co. Ltd & 2 others [2006] eKLR** held that the purpose of judicial review: *Judicial Review jurisdiction regulates the process by which a decision-making power granted by law is exercised by the person or body vested with that jurisdiction. The subject matter of Judicial Review is the legality of such decisions.* Further, in **Republic v Public Procurement Administrative Review Board & Another *ex parte* Gibb Africa Ltd & Another [2012] eKLR,** the court set out the reach of the judicial review jurisdiction: *In judicial review therefore, the court’s jurisdiction is limited to applying the three tests of “legality”, “rationality” and “procedural propriety” to the decision under review and once the decision passes the tests the court has no business taking any further step in respect of that decision. There is always a temptation to descend into the arena and substitute the judge’s decision with that of the public body whose decision is under attack. A judge should, however, avoid this temptation by all means lest he be accused of abusing the powers given to him to review the decisions of subordinate courts and tribunals.* The judicial review jurisdiction is thus a special supervisory jurisdiction, distinct from ordinary constitutional or civil jurisdiction, and distinguishable from the appellate jurisdiction by its limited reach. This is unlike a claim filed under a memorandum of claim or a petition seeking the enforcement of fundamental rights and freedoms. Judicial review is therefore different from ordinary adversarial litigation between private parties, as it does not entail examination of the evidence with a view to deciding the substantial merits of a case, but rather an examination of whether there was compliance with the applicable constitutional, statutory and procedural requirements. It thus becomes distinguished from an appeal, which entails the rehearing of a case and a decision on the substantive merits of the appeal. The ex parte applicant herein does not make a case that he applied for the position of Chief, II Gingo location, and the respondents failed to shortlist him, interview him, or appoint him for such position. These proceedings are filed on the basis that the ex parte applicant is a member of the public with a legitimate interest in the lawful, fair and constitutional appointment *of the Chief, Gingo location.* The principles addressing such interests and standing with the court are now set out in [**Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/50/eng%402026-07-03). Motions by a party without a direct or indirect employment relationship should move the High Court and not the court. Such then denies the court the requisite jurisdiction to hear the motion herein. On the substantive orders sought, the interested party filed his application on the basis that the orders sought by the ex parte applicant have since been overtaken by events upon his assumption of office. There is nothing to quash, prohibit or compel the respondent to do. The ex parte applicant moved the court on 24 April 2026, well aware that the interested party had been appointed by a letter dated 10 February 2026, yet he misled the court by claiming the position was vacant. Indeed, when the ex parte applicant attended court on 22 May 2026, submissions were made that an acting chief is running the office of chief at Gingo Location, and on this basis the interim orders herein were issued. This kind of misrepresentation of fact does not serve justice. It impacts the rule of law. It is a demonstration of abuse of the court process. Indeed, deliberate non-disclosure of material facts and misrepresentation of facts disentitle a party to any equitable relief from this Court. In [**Nkirina & another v Nkatha & 3 others [2023] KECA 1016 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1016/eng%402023-04-20) and [**Kaminchia & another v Yhiongo & 2 others [2026] KECA 1296 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1296/eng%402026-07-10), the court emphasised that material non-disclosure is part of fraud and once detected, the offending party should not benefit thereof. The court has since established that the interested party assumed office immediately upon the letter of appointment on 10 February 2026. The ex parte applicant, aware of such fact, misled the court in this regard. The internal orders were obtained through fraud. On the orders sought, the 4th respondent has set out the parameters within which the interested party was appointed as the Chief Gingo location. Following several advertisements and the same not securing a qualified candidate, a re-advertisement was issued. The PSC, through an advisory opinion dated 11 March 2024, wrote to the Principal Secretary, State Department for Internal Security and National Administration, regarding the re-advertised positions, including that of Chief, II Gingo location. The PSC circular thus advised the Principal Secretary, State Department for Internal Security and National Administration, on the application of the age limit as a provision that runs counter to the constitutional threshold. Thus, the PSC, based on its constitutional mandate under Article 234 and as the repository of best practices in public service, issued the advertisement and re-advertisement that met the threshold under Article 27 of the Constitution. The deletion of the age requirement for appointment to the positions of Assistant Chief II and Chief II, as provided for in the Revised Scheme of Service for National Government Administrative Officers of October 2015, is contrary to Article 27 of the Constitution. The ex parte applicant cannot justify a challenge to the appointment of the interested party based on a discriminatory provision that is contrary to Article 27(4) of the Constitution, which prohibits discrimination based on, among other issues, age. The requirement of an age limit was thus found unconstitutional, rendering the application and the orders sought unsustainable. Regarding the interested party meeting the minimum academic qualifications for the KCSE certificate and grade, the certificate is attached to the Replying Affidavit. The challenge thereof is without good basis. In the penultimate, the application by the ex parte applicant dated 24 April 2026 is without merit and is hereby dismissed. The ex parte applicant shall meet the costs incurred by the respondents and the interested parties. **The application dated 26 May 2026 is with merit, and the interim orders herein were irregularly obtained with material non-disclosure. The application by the ex parte applicant thus addressed, due costs herein are awarded to the respondents and interested parties.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**