REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC JUDICIAL REVIEW NO. E089 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
JOHNSON OTIENO ADERA ……………………………..………… APPLICANT
VERSUS
ROBI MBUGUA NJOROGE
EXECUTIVE DIRECTOR
ANTI-COUNTERFEIT AUTHORITY ..…………………..…. 1ST RESPONDENT
ANTI-COUNTERFEIT AUTHORITY ..…………………..…. 2ND RESPONDENT
JUDGMENT
1. This instant Application is premised on Articles 10, 47, 50, 232 & 234 of the Constitution, section 7, 8, 9 & 11 of the Fair Administrative Action Act and Rule 10(2) of the Fair Administrative Action Rules 2024 and seeks orders that:
a. Spent.
b. An exemption, for clarity and avoidance of doubt, under section 9(4) of the Fair Administrative Action Act from the obligation to pursue or exhaust any alternative remedy before the Public Service Commission as set out under the Public Service Commission (State Corporations and Public Universities) (Disciplinary Appeals Procedure) Regulations, 2025 be granted for reasons stated herein and in the Supporting Affidavit.
c. An order declaring paragraph 11.13 of Human Resource Policy and Procedure Manual of the Anti-Counterfeit Authority illegal and unconstitutional for violating the provisions of section 69 of Public Service Commission Act, section 4 of the Fair Administrative Action Act and Articles 10, 47 & 50 (1) of the Constitution.
d. An order declaring that the 1st Respondent has no disciplinary control or authority over the Applicant.
e. An order that the 1st Respondent’s letter of 25th August 2025 does not constitute a disciplinary decision of the 2nd Respondent that could be the subject of an appeal to the Public Service Commission under the Public Service Commission (State Corporations and Public Universities) ((Disciplinary Appeal Procedures) Regulations 2025.
f. An order setting aside the 1st Respondent’s letter of 25th August 2025 on account of, inter alia, being ultra vires and invalid.
g. An order compelling the 1st & 2nd Respondent to expunge the impugned letter dated 25th August 2025 from the Applicant’s personal personnel file.
h. An order of pecuniary compensation by way of damages for violation of the Applicant’s fair administrative constitutional and statutory rights to be paid by the 1st Respondent personally.
i. Costs of this application be paid personally by the 1st Respondent.
2. The Application is supported by the Applicant’s Affidavit and grounded on the grounds that: the Applicant is the 2nd Respondent’s Director Legal Services and Corporation secretary, with defined roles as per the 2nd Respondent’s career progression guidelines for staff and organization structure; as such, he is an employee at senior management level and has been so employed since 1st December 2011; prior to assuming the role, he was a senior state counsel at the State Law Office from January 2004 to November 2011; he has been employed in the public service cumulatively for over twenty years; his position is ranked at grade 2 in the approved grading structure of the 2nd Respondent, and therefore subject to the disciplinary control of the board of directors of the 2nd Respondent as per paragraph 11.5.2 of the Human Resource Policy and Procedures Manual (“the Manual”); that the 1st Respondent is equally subject to the said disciplinary control of board of directors; that he is not amenable to the disciplinary control of the board of directors that vests such power in the Public Service Commission for public officers that have served cumulatively for over 15 years under section 65(3) of the Public Service Commission Act (“the PSC Act”) for alleged misconduct that can lead to dismissal, or reduction in rank or seniority; that the 1st Respondent is the Applicant’s immediate administrative supervisor, but has no disciplinary control over him as the same is vested in the 2nd Respondent’s board of directors, subject to the limitations imposed by section 65(3) of the PSC Act; that the 1st Respondent on 25th August 2025 issued the Applicant with a warning alleging gross misconduct, in form of punishment or penalty provided for under paragraph 11.12.1(b) of the Manual; that the 1st Respondent having no disciplinary control over the Applicant on account of any misconduct, can only lodge a complaint with the board of directors; that the 1st Respondent’s action is ultra vires, and a clear usurpation of power; that the 1st Respondent having accused the Applicant of gross misconduct that could result in his dismissal, the 1st Respondent became the complainant and therefore he ought to have referred the matter to the board of directors for investigation and forwarding to the PSC for determination as per section 65(3) of the PSC Act; both he and the 1st Respondent being subject to the board of directors’ disciplinary control, he cannot impose any penalty or disciplinary control over the Applicant; the 1st Respondent’s action violated the Applicant’s legitimate expectation to be accorded fair administrative action as provided for under section 4 of the Fair Administrative Actions Act, Article 47 of the Constitution and the mandatory protections and guarantees of the general principles of disciplinary process under section 69 of the PSC Act and paragraph 10.39 of the Manual; the 1st Respondent acted maliciously towards the Applicant by issuance of warning letter; paragraph 11.13 of the Manual, that provides for issuance of warning without due process is unconstitutional and illegal; and due to the lack of disciplinary control over the Applicant, the 1st Respondent’s action was a nullity ab initio
3. The Respondents opposed the motion through their Replying Affidavit sworn by Hon. Nelson Ributhi Gaichuhie, the 2nd Respondent’s Chairperson, on 27th January 2026. In his affidavit, he confirmed that the Applicant was offered and appointed to the position of Deputy Director, Enforcement and Legal Services vide letters dated 17th October 2011. That the appointment was on clear terms that during his career, he would be governed by the Agency’s Service Regulations in force, which may be amended from time to time. As such, the applicable Manual is the April 2021, revised and approved in June 2021, having been approved by the board on 24th June 2021 in alignment to the PSC Human Resource Policy & Procedures Manual (“the PSC Manual”); and thus, forming part of the Applicant’s contractual terms and conditions of service. He deposed that paragraph 11 of the Manual provides for the applicable disciplinary powers and procedures, including informal and formal corrective measures, warnings, show cause letters, interdiction, suspension, disciplinary hearings and appeals. He added that paragraph 11.5 of the Manual provides that the discipline of members of staff in grades ACA1 to ACA3 falls under the purview of the board.
4. He deposed that in addition thereto, paragraph 11.13, more so sub-clause 1, provides for a first warning letter to be issued by the officer’s immediate supervisor, where the officer commits a minor offence. He added that the only requirement on the part of the officer is to signify in writing that he/she has read and understood the contents of the letter. He stated that there is provision for informal procedure under sub-clause 2 of paragraph 11.5, where an immediate supervisor may talk to the employee in private and encourage them to conduct themselves in accordance with required standard.
5. He stated that paragraph 11 of the Manual as a whole provides for participation in the disciplinary process across different levels, including immediate supervisor or head of functional area, the Human Resource function and the Executive Director and the Board; depending on the nature and gravity of the matter, clearly situating warnings at the lower end of the spectrum. He deposed that there is a deliberate distinction between preliminary supervisory/corrective interventions and formal disciplinary sanctions which attract heightened procedural safeguards and may culminate in appeal. He added sub-clauses 2.13 and 2.14 of the Manual vest the power of appointment in the board, with delegated authority to the Executive Director in respect of specified grades, thereby confirming the Executive Director’s role as operational head and immediate supervisor of directors, including the Applicant. A power provided for further under section 10 of the Anti-Counterfeit Act (“the Act”).
6. He deposed that the career progression guidelines lay the responsibility of the day-to-day management of the Authority and supervision of directors, including the Applicant upon the Executive Director. He reiterated that Circular No. 21 on the Revised Anti-Counterfeit Authority Human Resource Instruments (August 2021), formally confirms the approval of the revised Manual and the career progression guidelines by the Government and State Corporations Advisory Committee (SCAC), granting the instruments full force and effect within the public service framework. He contended that the issuance of a written warning by the Executive Director constitutes a routine internal corrective measure, and therefore does not amount to exercise of the board’s reserved powers to impose formal disciplinary sanctions. He contended further that the impugned warning letter does not in any manner affect the Applicant’s salary, grade, rank, benefits, tenure or immediate contractual status, as it is only expressly temporary and corrective in nature. He argued that the Employment Act 2007, justifies the procedural safeguards invoked by the Applicant under sections 41, 43 and 45, which dictate fairness in termination procedure.
7. He reiterated that there has been no termination, summary dismissal, suspension, interdiction, demotion, reduction of salary or any other adverse alteration of the Applicant’s contractual status. He added that the letter merely record management’s concerns and calls for corrective alignment. He invoked the Employment Act to argue that unfair termination and summary dismissal are not triggered by a mere warning letter. He urged that the appellate jurisdiction of the PSC is only invoked where an officer is aggrieved by the substantive disciplinary decision or penalty.
8. Consequently, he termed the Application as legally misconceived and procedurally premature. He deposed that it is in public interest that public employees be held accountable through human resource policies and procedures governing their employment contracts. He urged that courts should allow such processes to apply as provided in law and only intervene where there is a demonstratable breach of statute, policy or constitutional right. He argued that there is no material that has been placed before this Court demonstrating actual or imminent prejudice suffered or likely to be suffered by the Applicant as a result of the warning letter. He contended that the Applicant intention is to have this Court micro-manage the 2nd Respondent’s supervisory functions, contrary to the law, and to insulate himself from ordinary managerial oversight to which public officers are subject.
9. He termed the Application as antithetical to Articles 10 and 232 of the Constitution which demand for accountability, transparency, high standards of professional ethics and responsive, effective and efficient public service, and therefore incompatible with the leadership and integrity obligations under Chapter six. He reminded the Court of its obligation under Article 3(1) of the Constitution, to respect, uphold and defend the Constitution. He deposed that the 1st Respondent was improperly joined as a Respondent as the impugned actions were undertaken solely in his official capacity in exercise of his mandate as Executive Director. He stated that the personal joinder is misconceived and warranting his striking out with costs. He further urged that the motion be dismissed with costs to the Respondents as it is devoid of merit, procedurally premature and constitutes an abuse of court process.
10. In rejoinder, the Applicant in his supplementary affidavit deposed that 2021 Manual is an unconstitutional and illegal document that has never formed part of his contract and therefore is inoperable. He averred that the imposition of the said Manual upon him and its illegality is the substratum of this application. He contended further that the career progression guidelines for staff 2021 is also unconstitutional and illegal document that does not form part of his contract; on account of constitutional and statutory invalidity. He accused the Respondents of being on an errand of their own creating their own views on the day to day supervisory and corrective measures. He argued that a warning letter is not one of the penalties stipulated in the PSC Act. He deposed that the 2nd Respondent is expected to have its own human resource instruments and cannot therefore rely on the Manuals by the PSC.
11. He deposed that the Court’s jurisdiction is to intervene where an illegality or unconstitutionality is alleged and therefor the issue on prematurity and ripeness is a non-issue. He argued that the 1st Respondent has not been wrongly joined as he is a decision maker and the sole initiator and author of the impugned decision. He added that as a creature of section 10 of the Act, he is the right and proper party to be called out to account. He contended that despite the Respondents’ dispositions, they failed to address any of the issued he has raised in his application. He stated that he has no contract of service with the 2nd Respondent that includes the 2021 Manual and that his contract of service dated 17th October 2011 doesn’t make any reference to any manual. He contended that he has not signed any revised contract of service or in any way demonstrated his consent to the Manual. He concluded that the Respondents have not controverted any of his dispositions and therefore the same are unchallenged.
Submissions
12. The Applicant through his counsel’s submissions and supplementary submissions raised the following cumulative issues for determination: whether the Court has jurisdiction to entertain, hear and determine the Application; whether paragraph 11.13 of the 2021 Manual is illegal and unconstitutional; whether the 2nd Respondent’s human resource instruments are valid; whether the Respondents have controverted the issues raised in the Application; and what remedies should ensue.
13. On the first issue, it was argued that it is trite that a party that alleges constitutional or statutory violation has direct access to the Courts. In support thereof, he placed reliance on the Supreme Court case of Nicholus v Attorney General & 7 others; National Environment Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR). On the second issue, the Manual was termed as unconstitutional for reasons that it offends the provisions of section 69(3) of the PSC Act, section 12 of the Fair Administrative Actions Act, Article 50(1) of the Constitution and paragraph 11.7.1 of the 2nd Respondent’s Manual. He added that the impugned paragraphs deny the Applicant the rights and guarantees provided for under section 4 of the Fair Administrative Action Act, and violate the rules of natural justice. Reliance was placed on the case of Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR). In submitting that an Act that violates rules of natural justice should be nullified, reliance was placed on the case of David Oloo Onyango v The Attorney General [1987] KECA 56 (KLR).
14. On the third issue, he argued that the SCAC lacked power to approve human resource instruments as the same is exclusively vested in the PSC by Article 234(f) of the Constitution and section 56 of the PSC Act; thus, the impugned instruments are illegal, unconstitutional and invalid and the motion be allowed on those grounds. Reliance was placed on the decision in Federation of Kenya Employers (COFEK) suing through its officials namely Stanley Mutoro, Ephraim Kanake & Henry Ochieng v National Social Security Fund Board of Trustees & Another; Cabinet Secretary, Ministry of Labour & Social Protection [interested party] [2022] KEELRC 248 (KLR).
15. On the fourth issue, it was submitted that the failure by the Respondents to address the issue on validity of imposition of a warning letter without due process, and in violation of rules of natural justice and the right to be heard, renders the motion successful. The Response was termed evasive.
16. On the fifth issue, in submitting that the motion should succeed, it was argued that there can be no penalty or punishment to be imposed upon any Kenyan without due process. On whether a written warning is a punishment or penalty, reliance was placed forms of punishment prescribed under paragraph 11.12 of the Manual. The Court was urged to disregard the assertion that the same is a corrective, advisory and non-punitive administrative measure.
17. The Respondents through their counsel’s submissions raised the following issues for determination: whether the motion is premature and offends the doctrine of exhaustion; whether the relief sought is within the purview of section 9(4) to be granted exemption from the doctrine of exhaustion; whether the 1st Respondent had authority to issue the impugned warning letter; whether the warning letter constitutes a disciplinary decision attracting constitutional and statutory safeguards; whether the Applicant has established a violation of Article 47 and 50 of the Constitution; whether this Court should interfere with internal human resource processes; whether paragraph 11.13 of the Respondent’s Human Resource Policy and Procedure Manual 2021 is illegal and unconstitutional; whether the human resource of the 2nd Respondent are valid; whether the 1st Respondent is improperly joined in personal capacity; whether the 1st Respondent acted ultra vires by issuing the impugned warning letter dated 25th August 2025 to the Applicant.
18. On the first issue, reliance was placed on the case of Chovu v Director of Criminal Investigations and 7 others; Awale Transporters Limited & 2 others (interested parties) on the doctrine of ripeness limiting court’s jurisdiction. It was submitted that the Applicant has not suffered any adverse disciplinary outcome to warrant judicial intervention. The Applicant was accused of bypassing clear available internal remedies in violation of the doctrine of exhaustion. Reliance was placed on the decision in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) and section 9 of the Fair Administrative Action Act. Further reliance was placed on section 74(1) of the PSC Act and Regulation 68 of the PSC Regulations 2020.
19. It was added that the 2nd Respondent is a statutory public body whose legal disciplinary framework falls within the ambit of section 74(1) of the PSC Act. It was submitted that section 3 of the PSC Act provides for the applicability of the provisions of the PSC Act to public institutions including the 2nd Respondent. It was added that the interpretations section of the PSC Act further defines conditions of service to include matters relating to grievances and disciplinary control. It was argued that disputes regarding disciplinary control relating to the 2nd Respondents employees falls within the statutory regime governed by the PSC Act. It was further submitted that the 2nd Respondent’s manual at paragraph 11.23 provides for lodging of appeals and applications for review. It was argued that the Applicant’s failure to utilize the internal procedures demonstrates a deliberate circumvention of established internal channels. Support was gathered from the decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille [2017] eKLR and Susan Khakasa Oyatsi v Judicial Service Commission [2022] KEELRC 3 (KLR). It was argued that since no disciplinary process has been commenced and the internal mechanisms remain fully available, the threshold for judicial intervention has not been satisfied. As such, the motion was termed as speculative, incompetent and an abuse of process and therefore ought to be dismissed with costs.
20. On the second issue, it was submitted that section 9(2& 3) of the Fair Administrative Action Act bars courts from reviewing administrative actions unless internal remedies have been exhausted. It was argued that the facts of the case do not present exceptional circumstances provided for under section 9(4) of the Fair Administrative Action Act. To buttress their submissions, reliance was placed on the decision in Opiyo v Anglican Church of Kenya & 8 others [2026] KEHC 1987 (KLR).
21. It was submitted that the Manual provides a clear grievance resolution pathway beginning from the immediate supervisor, escalating to the Executive Director and culminating in appeals. It was argued that the Applicant has failed to demonstrate that any of the steps are inadequate or futile. The Court was urged to exercise its discretion conservatively in line with the principle that judicial intervention is exceptional. The Court was further urged to decline to exempt the Applicant from exhausting all internal mechanisms and further direct him to exhaust all available internal mechanisms.
22. On the third issue, it was argued that the Applicant’s contention is legally untenable as it misapprehends the distinction between supervisory intervention and formal disciplinary control within the public service. It was submitted that the impugned letter falls within the routine managerial intervention within the operational mandate of the 1st Respondent as donated under section 10 of the Act. Counsel submitted that the career progression guidelines place the Applicant directly within the 1st Respondent’s supervision. It was contended that paragraphs 11.13 and 11.15 of the Manual expressly authorizes supervisors to address instances of minor misconduct through informal corrective measures including the issuance of warning letters. Their argument is that such a letter is not only permitted but is also an integral part of internal performance management. It was argued further that a warning letter serves as a preliminary and corrective administrative tool intended to address conduct at an early stage and forestall escalation into formal disciplinary proceedings. It was added that the letter was a lawful exercise of supervisory authority firmly grounded in statute, policy, and established administrative practice.
23. On the fourth issue, it was submitted that the nature and effect of the letter must be examined objectively. It was reiterated that the same is a preliminary managerial intervention and not a disciplinary determination as it does not trigger the elaborate procedural protections contemplated under section 69.
24. On the fifth issue, it was submitted that for Article 47 of the Constitution to be invoked, there must be identifiable administrative action/decision that adversely affects the rights or interests of a person. It was submitted that the Courts have on numerous occasions laid a distinction between administrative actions with legal consequences and ordinary managerial or operational acts within institutions as observed in the case of Republic v Commissioner of Customs Services ex-parte Africa K-Link International Limited [2012] eKLR. It was added that the Applicant has not demonstrated any imminent or actual infringement of rights arising from the letter. On the right to a fair hearing, it was submitted that the invocation of Article 50 is misplaced, exaggerated and legally unsustainable as no adjudicative process has arisen to trigger the protection under this Article. It was urged that the constitutional claims are unfounded.
25. On the sixth issue, it was submitted that the Applicant’s intention is to invite this Court to micro-manage the supervisory functions and supervise the Respondent’s day-to-day administrative decisions. It was argued that the same is not constitutionally permitted as it undermines the autonomy and operational efficiency of public entities. The Court was invited to exercise caution in observance of the doctrine of judicial restraint, in order to avoid interfering with the administrative and HR processes unless there is evidence of illegality, irrationality, procedural impropriety or manifest unfairness. In support, reliance was placed on the decision in Republic v National Water Conservation & Pipeline Corporations & 11 others. The Court was urged to decline to interfere with the internal HR process at this stage.
26. On the seventh issue, it was submitted that the impugned paragraph 11.3 of the Manual merely sets out the procedural framework for managing minor and major employee misconduct within the authority. It was added that it is fully consistent with statutory provisions under the PSC Act. It was submitted that it delineates a structure approach to warning, investigations, show cause procedures and disciplinary hearings. It was added that the Manual explicitly distinguishes between minor offences attracting preliminary warnings and major offences or gross misconduct requiring a formal show cause process and full disciplinary hearing. It was submitted that the paragraphs 11.13.1 to 11.13.8 provide for the first, second and final warnings for minor offences, with clear timelines and required documentation. Paragraph 11.13.9 was said to provide procedural safeguards for more serious offences. It was submitted that the steps demonstrate compliances with constitutional guarantees of fair administrative action and the right to fair hearing ensuring that any employee facing potential disciplinary action is afforded procedural fairness at every stage. It was argued that the impugned paragraphs do not therefore contravene constitutional and statutory provisions; rather, it operationalizes them within a clear, lawful and internal framework for grievance handling and discipline.
27. On the eighth issue, it was submitted that the Manual is valid, lawful and binding, having been properly developed and approved in accordance with the applicable legal framework governing state corporations at the material time. It was submitted that at the time of its approval the SCAC had been established under section 27 of the State Corporations Act. Consistently, the Manual was duly approved by the 2nd Respondent’s board and subjected to the review, harmonization and advisory oversight by SCAC to ensure alignment with the public service standards and government policy. Consequently, it acquired the full legal force as a valid internal governance instrument regulating employment, discipline and administrative procedures within the Authority.
28. In further submission, reliance was placed on the decision in Anthony v Communications Authority of Kenya & 3 others (Petition E161 of 2021) [2022] KEELRC 1117 (KLR), where court observed the legal status and enforceability of human resource instruments developed by state corporation within applicable statutory and public service framework. It was added that the Court further observed that such instruments are not merely administrative guidelines but form part of the regulatory and contractual framework governing employees and are therefore enforceable unless demonstrated to be unlawful or inconsistent with statute or constitution.
29. It was argued that the 2021 Manual forms an integral part of the Applicant’s contractual and statutory employment framework as his own appointment letter subjects him to the Human Resource instruments; as may be amended from time to time. It was argued further that the Applicant cannot approbate and reprobate by invoking the manual when it is beneficial and impugning its validity when its provisions are applied. It was submitted that following the suspension of the 2025 Instruments by a Circular dated 16th May 2025, issued by the Head of Public Service, the 2021 Manual remains to be the only valid and operative framework governing the 2nd Respondent’s human resource and disciplinary processes.
30. It was contended that the Applicant has not demonstrated any illegality in the approval and adoption of the 2021 Manual; to prove that the same was approved contrary to any written law, or the existence of any procedural impropriety in its formulation. It was argued that the Applicant’s grievance is not related to the validity of the Manual per se, but rather, the lawful exercise of supervisory and managerial authority within the framework of the Manual. It was urged that the invalidation of the annual would undermine the lawful internal governance structure of state corporations, disrupt established public service human resource frameworks and invite unwarranted judicial interference in routine administrative functions, contrary to constitutional values of good governance, efficiency and institutional autonomy. It was urged that the Applicant’s challenge to the validity of the Manual is devoid of legal foundation and ought to be rejected with costs.
31. On the ninth issue, it was reiterated that the 1st Respondent was improperly joined in the proceedings as the actions complained of were undertaken strictly in discharge of official duties and within the scope of lawful statutory mandate. It was contended that the pleadings and the evidence on record do not disclose any basis of personal liability as against the 1st Respondent. It was urged that for personal liability to attach to a public officer, there must be clear and specific proof of impropriety, bad faith, malice, illegality, and actions taken outside statutory authority. Reliance was placed on the decision in Langat v Shikondi & 4 others [2023] KEHC 25301 (KLR).
32. On the tenth issue, it was submitted that the issuance of the warning letter was lawful, proper and within the 1st Respondent’s mandate, and according to applicable policy and procedures governing the Authority’s operations. The same was termed as having been undertaken in good faith in exercise of lawful supervisory functions. In Conclusion, the Respondents urged the Court to dismiss the motion, strike out the 1st Respondent and confirm that the warning letter does not constitute disciplinary action.
33. In response to the Respondent’s submissions, the Applicant in his supplementary submissions, submitted on issue on delegation of powers by the PSC. Reliance was placed on the decision in Anthony v Communications Authority of Kenya & 3 others (Supra) (KLR); to argue that the PSC revoked its delegated powers to SCAC on 30th September 2019. It was added that the impugned instruments were approved by SCAC two years of the said revocation. It was argued that this Court has held that instruments not approved by PSC are inoperable, null and void and should not be adopted, implemented or in any way dealt. The Court was urged to hold the same stance.
34. It was argued further that the principles under section 69 of the PSC Act were designed to protect public officers from arbitrariness from supervisors in imposing whimsical penalties and punishments.
35. On the doctrine of exhaustion and applicability of section 74(1) of the PSC Act, it was submitted that the doctrine is inapplicable as this is an issue on interpretation and application of the Constitution and statute, a preserve of the Court. It was added that this Court settled in of Kamau v Kenya Accreditation Service [2021] KEELRC 8 (KLR), that the PSC is ill-suited and not the proper forum to determine issues of illegality.
36. On whether the matter can be referred to PSC, it was submitted that the same cannot as there is no decision capable of being appealed to the PSC. On whether the 1st Respondent is properly joined, it was submitted that the Applicant has pleaded malice on his part which makes him personally responsible and accountable as he has no immunity under section 14 for malicious acts.
Analysis
37. It is not in dispute that the 1st Respondent was issued a warning letter upon the Applicant on account of misconduct. What is in issue is whether the 1st Respondent has the capacity to institute disciplinary measures against the Applicant and whether the Manual relied upon by the Respondents is valid, more so, the constitutionality and validity of paragraph 11.13.
38. On fairness of administrative actions, Section 4 of the Fair Administrative Action Act provides that:
“1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
2. Every person has the right to be given written reasons for administrative action that is taken against him.
3. Where administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a. Prior and adequate notice of the nature and the reasons for the proposed administrative action;
b. An opportunity to be heard and to make representations in that regard; …”
39. The basis of Judicial Review Applications was outlined by the Ugandan case of Pastoli v Kabale District Local Government Council & others (2008) 2 EA 300, where the court stated that:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
Illegality, is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality.
Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.
Procedural impropriety, is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi…Vs… Secretary of State for the Housing Department (1990) AC 876.”
40. Similarly, in Council of Civil Service Union v Minister for the Civil Service (1984) 3 ALL ER 935 the court had this to say regarding irrationality of decisions: -
“By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness … it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
41. In order to establish whether the Respondents’ decision was irrational, it is important to evaluate the letter in question. The impugned letter by the 1st Respondent read as follows:
“Our Ref: 201112058 Date: Monday, August 25,2025.
Johnson Otieno Adera
Director Legal Services
P.O. Box 7495-00300
Nairobi.
Dear,
RE: FAILURE TO COMPLY WITH INSTRUCTIONS – ABC SILICONE FILE AND CORRESPONDENCE TO ODPP AND THE COURT.
I refer to my earlier instructions requiring you to urgently furnish this office with the complete ABC Silicone Limited file, together with copies of all the related correspondences addressed to the Office of the Director of Public Prosecutions (ODPP) and the Court.
Despite repeated reminders, you have not complied. Instead, your responses have been evasive and have failed to address the clear directives issued. This conduct is unacceptable. Both the Human Resource Policy and Procedures Manual 2021 and the Employment Act 2002 are explicit.
• Section 10 and 11 of the HR Manual require employees to promptly comply with lawful instructions, uphold professionalism, and avoid obstruction of official duties;
• Section 44(4)(a) and (e) of the Employment Act provide that wilful neglect to perform duties or failure to obey lawful instructions from a supervisor amounts to gross misconduct, which may justify summary dismissal.
You are therefore directed to:
1. Within five (5) working days, supply my office with a complete copy of the ABS Silicone file;
2. Provide all related correspondences exchanged with ODPP and the Court regarding this matter; and
3. Confirm in writing that no material documents have been withheld.
Be advised that failure to comply with these instructions will result in invocation of the relevant disciplinary provisions of the HR Manual and the Employment Act.
This communication serves as a final demand and warning.
Dr. Robi Mbugua Njoroge.
EXECUTIVE DIRECTOR.”
42. The Applicant in his response to the letter raised concerns that: he was unwell and as a result of his medical condition, he was not in the office; he could only respond to lawful, reasonable and regular instructions, as those issued to him were malicious and a witch-hunt; the responsibilities he is engaged in and is paid for out of public funds, do not include investigations; it was strange that the 1st Respondent insisted to be supplied with the complete ABC Silicone Limited file, whereas the original and complete file was either in the 1st Respondent’s office or with enforcement, wherefrom a complete copy could be obtained; had the 1st Respondent been acting in good faith, he would use the original file in his office in which he made a decision contrary to the decision to charge; the decision to not charge was as a result of the corrupt and illegal practices at the enforcement directorate that he had brought to the 1st Respondent’s attention, but who did not take any action; the recommendation letter to the DPP was shared with the 1st Respondent, who kept his decision from the Applicant on concept of “prior use”, indicating his displeasure with the DPP’s acceptance of the recommendation to charge; he denied knowing any documents withheld or any material the 1st Respondent was talking about; he raised the issue on the 1st Respondent’s conflict in the matter, which the 1st Respondent was yet to respond to; he provided evidence of the 1st Respondent’s support of the criminal suspects in both the criminal matter and at the High Court; in light of the 1st Respondent’s conflict that was yet to be resolved, he would not discuss the civil file with him as the same was privileged; he has a duty and responsibility to represent ACA professionally and that included not sharing confidential information in the file including litigation strategies with conflicted persons or entities; he occupied the position that the 1st Respondent had no lawful authority in the matter and more specifically to issue him with a warning; and the issue on authority was one to be decided by the Court.
43. The Applicant’s contention is that the 1st Respondent lacked authority to discipline him as the same lay with the Board and therefore the warning letter was invalid. The Respondents on the other hand, while relying on clause 11.13 and the Applicants appointment letter, argued that the 1st Respondent is vested with the authority to reprimand the Applicant, in his capacity as his immediate supervisor.
44. Clause 11.5.2 dictates that the discipline of members of staff in Grades ACA1 to ACA 3 shall fall within the purview of the Board. Does this therefore take away the 1st Respondent’s power to discipline the Applicant? I have perused the Manual and I find that the same is quite ambiguous on the disciplinary procedure for employees in ranks ACA 1-3. However, it is important to employ a purposive interpretation of the Manual holistically borrowing from the sentiments of Nzioki wa Makau J in the case of Nicholas Otieno v Patco Industries Limited [2013] KEELRC 98 (KLR) where the Judge observed that:
“ … Lord Denning in the case of Notham v. London Borough of Barnet (1978) 1 WLR 220 held the purposive interpretation was permitted to “promote the general legislative purpose underlying the provisions”.
14. The House of Lords in the case of Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (HL) had occasion to delve into the issue of interpretation. Viscount Simonds sat alongside Lord Normand, Lord Morton of Henryton, Lord Tucker & Lord Somervell of Harrow in the unusual claim to British nationality now known as the Prince of Hanover case. At page 461 Viscount Simonds stated as follows:-
“So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.”
15.An authority on the subject Sir Rupert Cross in his book Statutory Interpretation (3rd ed, 1995), gave vent to the unified approach to interpretation. In this postulation, the following are the combination of approaches used. The judge begins by applying or using the grammatical and ordinary or technical meaning of the context of the piece of legislation and if this produces an untenable or absurd result then the judge may apply any secondary meaning possible. The judge may imply words into the statute or alter or ignore altogether some words to prevent a provision from being unconstitutional, unintelligible, unworkable or absurd. In applying these rules the judge may resort to various aids and presumptions.”
45. Clauses 11.13.1 to 11.13.6 provide for warning letters and their effect. Sub-clause 1 provides that a first warning letter should be given to an officer by his or her immediate supervisor. The Applicant’s appointment letter directs that the Applicant reports to the Executive Director for instruction and deployment. Additionally, under the job specification for Director Legal services in the Career Progression Guidelines for staff, it is explicit that the Director is responsible to the Executive Director in the performance of his roles. That said, it follows that the 1st Respondent is the Applicant’s supervisor and therefore empowered by the Manual to issue a warning letter to the Applicant. Consequently, it is the finding of the court that the 1st Respondent had authority to issue the impugned letter.
46. It has been held that it is not the role of the court to interfere with the internal disciplinary processes of an employer. This position was appreciated in the case of Jackson Butiya vs Eastern Produce Kenya Limited (Industrial Court Cause No 335 of 2011) where this Court stated that:
“… It is not the role of the Court to supervise the internal grievance handling processes between employers and employees. The role of the Court is to ensure that such processes are undertaken within the law.”
47. The same was further expounded by the Court in Mworia v Water Resources Management Authority & 2 others [2015] KEELRC 1124 (KLR) where the court observed that:
… The general principle is that the court shall not interfere in the employer’s entitlement to undertake these functions and interference by the court shall be exercised very sparingly. The court’s rare intervention can be justified on account of obvious breach by the employer of the statutory or agreed due process or such other manifest injustice and in circumstances whereby the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process....”
24.The principles are clear.
25.The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.
48. In addition to internal mechanisms, it is trite that where a public officer is aggrieved by a decision made by the employer, appeals shall lie with the PSC. The Applicant’s contention is that the Manual is invalid by dint of the PSC Circular that reserved the right to approve guidelines to the PSC. The said Circular is dated 8th August 2023 and provides as follows at paragraph 3:
“with effect from the date of this circular, any newly developed or reviewed Human Resource Management Instruments, or proposals for establishment of new offices, or abolition of offices should comply with the guidelines herewith and be submitted to the Commission for consideration and approval. Please note that any Human Resource Management Instruments released for implementation without prior approval by the commission will be considered null and void as pronounced by the Courts.”
49. From the wording of the Circular, it is apparent that only instruments implemented from the date of the circular shall be invalid. Consequently, the 2021 Manual was not affected by the 2023 Circular. Despite the Applicant’s deliberate attempt to mislead this Court by stating that the PSC Circular was for 30th September 2019, there is a clear grievance resolution mechanism that the Applicant ought to have approached before invoking this Court’s intervention. This is outlined under clause 11.5.3 which states that:
“any appeal by an aggrieved staff shall be to the Board in writing within six (6) weeks from the date of the receipt of the letter conveying the disciplinary decision.”
50. In the court’s view, it was premature for the Applicant to invoke the courts jurisdiction without filing an appeal with the board of directors of the 2nd Respondent. A resolution of the board on the matter was necessary. The Applicant provided no reason why he did not appeal to the board of directors, yet he acknowledged it was the only body that had disciplinary powers over him subject to statutory limitations under the Public Service Commission Act.
51. In his application and submissions, the applicant in seeking exemption from the doctrine of exhaustion, arguing that the matter at hand could not be referred to PSC as the same was based on interpretation and application of the Constitution and statute, a preserve of the Court. It is therefore apparent that this is an issue at hand is one on infringement of rights, statutory interpretation and compensation. This by itself does not fall within the purpose of Judicial review.
52. In dismissing the same on account that it should have been proffered by way of Petition and not Judicial Review Application, I am guided by Rule 4 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, (the Mutunga Rules) that provide as hereunder:
4. Contravention of rights or fundamental freedoms
(1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.
53. Rule 10 of the said Rules further provides for the form in which a Constitutional Petition should take as follows:
10. Form of petition
(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g)the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
54. Similarly, the reliance is placed on the reasoning in Commissioner of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR) where the Court of Appeal held that:
… But it must be remembered that judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision-making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected. (See; R v. Secretary of State for Education and Science ex parte Avon County Council [1991] 1 ALL ER.282, at p. 285.). The Point was more succinctly made in the English case of Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, by Lord Hailsham of St. Marylebone, thus:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court."
55. From the foregoing, the court finds that the Judicial Review Application should fail in its entirety as the prayers sought do not fall within the ambit of Judicial Review as observed by Mativo J, in Republic v Board of Management, [Particulars Withheld] Schools & another Ex parte PK [2019] KEHC 11215 (KLR) as follows:
12. Judicial Review Remedies are meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the Rule of Law. The courts when exercising this power of construction are enforcing the Rule of Law, by requiring administrative bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. Judicial review is the procedure used by the courts to supervise the exercise of public power. It is a means by which improper exercise of such power can be remedied and it is therefore an important component of good public administration.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI
ON THIS 28TH DAY OF MARCH, 2026
DR. JACOB GAKERI
JUDGE
ORDER
In 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 has 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.
DR. JACOB GAKERI
JUDGE
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC JUDICIAL REVIEW NO. E089 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
JOHNSON OTIENO ADERA ……………………………..………… APPLICANT
VERSUS
ROBI MBUGUA NJOROGE
EXECUTIVE DIRECTOR
ANTI-COUNTERFEIT AUTHORITY ..…………………..…. 1ST RESPONDENT
ANTI-COUNTERFEIT AUTHORITY ..…………………..…. 2ND RESPONDENT
JUDGMENT
1. This instant Application is premised on Articles 10, 47, 50, 232 & 234 of the Constitution, section 7, 8, 9 & 11 of the Fair Administrative Action Act and Rule 10(2) of the Fair Administrative Action Rules 2024 and seeks orders that:
a. Spent.
b. An exemption, for clarity and avoidance of doubt, under section 9(4) of the Fair Administrative Action Act from the obligation to pursue or exhaust any alternative remedy before the Public Service Commission as set out under the Public Service Commission (State Corporations and Public Universities) (Disciplinary Appeals Procedure) Regulations, 2025 be granted for reasons stated herein and in the Supporting Affidavit.
c. An order declaring paragraph 11.13 of Human Resource Policy and Procedure Manual of the Anti-Counterfeit Authority illegal and unconstitutional for violating the provisions of section 69 of Public Service Commission Act, section 4 of the Fair Administrative Action Act and Articles 10, 47 & 50 (1) of the Constitution.
d. An order declaring that the 1st Respondent has no disciplinary control or authority over the Applicant.
e. An order that the 1st Respondent’s letter of 25th August 2025 does not constitute a disciplinary decision of the 2nd Respondent that could be the subject of an appeal to the Public Service Commission under the Public Service Commission (State Corporations and Public Universities) ((Disciplinary Appeal Procedures) Regulations 2025.
f. An order setting aside the 1st Respondent’s letter of 25th August 2025 on account of, inter alia, being ultra vires and invalid.
g. An order compelling the 1st & 2nd Respondent to expunge the impugned letter dated 25th August 2025 from the Applicant’s personal personnel file.
h. An order of pecuniary compensation by way of damages for violation of the Applicant’s fair administrative constitutional and statutory rights to be paid by the 1st Respondent personally.
i. Costs of this application be paid personally by the 1st Respondent.
2. The Application is supported by the Applicant’s Affidavit and grounded on the grounds that: the Applicant is the 2nd Respondent’s Director Legal Services and Corporation secretary, with defined roles as per the 2nd Respondent’s career progression guidelines for staff and organization structure; as such, he is an employee at senior management level and has been so employed since 1st December 2011; prior to assuming the role, he was a senior state counsel at the State Law Office from January 2004 to November 2011; he has been employed in the public service cumulatively for over twenty years; his position is ranked at grade 2 in the approved grading structure of the 2nd Respondent, and therefore subject to the disciplinary control of the board of directors of the 2nd Respondent as per paragraph 11.5.2 of the Human Resource Policy and Procedures Manual (“the Manual”); that the 1st Respondent is equally subject to the said disciplinary control of board of directors; that he is not amenable to the disciplinary control of the board of directors that vests such power in the Public Service Commission for public officers that have served cumulatively for over 15 years under section 65(3) of the Public Service Commission Act (“the PSC Act”) for alleged misconduct that can lead to dismissal, or reduction in rank or seniority; that the 1st Respondent is the Applicant’s immediate administrative supervisor, but has no disciplinary control over him as the same is vested in the 2nd Respondent’s board of directors, subject to the limitations imposed by section 65(3) of the PSC Act; that the 1st Respondent on 25th August 2025 issued the Applicant with a warning alleging gross misconduct, in form of punishment or penalty provided for under paragraph 11.12.1(b) of the Manual; that the 1st Respondent having no disciplinary control over the Applicant on account of any misconduct, can only lodge a complaint with the board of directors; that the 1st Respondent’s action is ultra vires, and a clear usurpation of power; that the 1st Respondent having accused the Applicant of gross misconduct that could result in his dismissal, the 1st Respondent became the complainant and therefore he ought to have referred the matter to the board of directors for investigation and forwarding to the PSC for determination as per section 65(3) of the PSC Act; both he and the 1st Respondent being subject to the board of directors’ disciplinary control, he cannot impose any penalty or disciplinary control over the Applicant; the 1st Respondent’s action violated the Applicant’s legitimate expectation to be accorded fair administrative action as provided for under section 4 of the Fair Administrative Actions Act, Article 47 of the Constitution and the mandatory protections and guarantees of the general principles of disciplinary process under section 69 of the PSC Act and paragraph 10.39 of the Manual; the 1st Respondent acted maliciously towards the Applicant by issuance of warning letter; paragraph 11.13 of the Manual, that provides for issuance of warning without due process is unconstitutional and illegal; and due to the lack of disciplinary control over the Applicant, the 1st Respondent’s action was a nullity ab initio
3. The Respondents opposed the motion through their Replying Affidavit sworn by Hon. Nelson Ributhi Gaichuhie, the 2nd Respondent’s Chairperson, on 27th January 2026. In his affidavit, he confirmed that the Applicant was offered and appointed to the position of Deputy Director, Enforcement and Legal Services vide letters dated 17th October 2011. That the appointment was on clear terms that during his career, he would be governed by the Agency’s Service Regulations in force, which may be amended from time to time. As such, the applicable Manual is the April 2021, revised and approved in June 2021, having been approved by the board on 24th June 2021 in alignment to the PSC Human Resource Policy & Procedures Manual (“the PSC Manual”); and thus, forming part of the Applicant’s contractual terms and conditions of service. He deposed that paragraph 11 of the Manual provides for the applicable disciplinary powers and procedures, including informal and formal corrective measures, warnings, show cause letters, interdiction, suspension, disciplinary hearings and appeals. He added that paragraph 11.5 of the Manual provides that the discipline of members of staff in grades ACA1 to ACA3 falls under the purview of the board.
4. He deposed that in addition thereto, paragraph 11.13, more so sub-clause 1, provides for a first warning letter to be issued by the officer’s immediate supervisor, where the officer commits a minor offence. He added that the only requirement on the part of the officer is to signify in writing that he/she has read and understood the contents of the letter. He stated that there is provision for informal procedure under sub-clause 2 of paragraph 11.5, where an immediate supervisor may talk to the employee in private and encourage them to conduct themselves in accordance with required standard.
5. He stated that paragraph 11 of the Manual as a whole provides for participation in the disciplinary process across different levels, including immediate supervisor or head of functional area, the Human Resource function and the Executive Director and the Board; depending on the nature and gravity of the matter, clearly situating warnings at the lower end of the spectrum. He deposed that there is a deliberate distinction between preliminary supervisory/corrective interventions and formal disciplinary sanctions which attract heightened procedural safeguards and may culminate in appeal. He added sub-clauses 2.13 and 2.14 of the Manual vest the power of appointment in the board, with delegated authority to the Executive Director in respect of specified grades, thereby confirming the Executive Director’s role as operational head and immediate supervisor of directors, including the Applicant. A power provided for further under section 10 of the Anti-Counterfeit Act (“the Act”).
6. He deposed that the career progression guidelines lay the responsibility of the day-to-day management of the Authority and supervision of directors, including the Applicant upon the Executive Director. He reiterated that Circular No. 21 on the Revised Anti-Counterfeit Authority Human Resource Instruments (August 2021), formally confirms the approval of the revised Manual and the career progression guidelines by the Government and State Corporations Advisory Committee (SCAC), granting the instruments full force and effect within the public service framework. He contended that the issuance of a written warning by the Executive Director constitutes a routine internal corrective measure, and therefore does not amount to exercise of the board’s reserved powers to impose formal disciplinary sanctions. He contended further that the impugned warning letter does not in any manner affect the Applicant’s salary, grade, rank, benefits, tenure or immediate contractual status, as it is only expressly temporary and corrective in nature. He argued that the Employment Act 2007, justifies the procedural safeguards invoked by the Applicant under sections 41, 43 and 45, which dictate fairness in termination procedure.
7. He reiterated that there has been no termination, summary dismissal, suspension, interdiction, demotion, reduction of salary or any other adverse alteration of the Applicant’s contractual status. He added that the letter merely record management’s concerns and calls for corrective alignment. He invoked the Employment Act to argue that unfair termination and summary dismissal are not triggered by a mere warning letter. He urged that the appellate jurisdiction of the PSC is only invoked where an officer is aggrieved by the substantive disciplinary decision or penalty.
8. Consequently, he termed the Application as legally misconceived and procedurally premature. He deposed that it is in public interest that public employees be held accountable through human resource policies and procedures governing their employment contracts. He urged that courts should allow such processes to apply as provided in law and only intervene where there is a demonstratable breach of statute, policy or constitutional right. He argued that there is no material that has been placed before this Court demonstrating actual or imminent prejudice suffered or likely to be suffered by the Applicant as a result of the warning letter. He contended that the Applicant intention is to have this Court micro-manage the 2nd Respondent’s supervisory functions, contrary to the law, and to insulate himself from ordinary managerial oversight to which public officers are subject.
9. He termed the Application as antithetical to Articles 10 and 232 of the Constitution which demand for accountability, transparency, high standards of professional ethics and responsive, effective and efficient public service, and therefore incompatible with the leadership and integrity obligations under Chapter six. He reminded the Court of its obligation under Article 3(1) of the Constitution, to respect, uphold and defend the Constitution. He deposed that the 1st Respondent was improperly joined as a Respondent as the impugned actions were undertaken solely in his official capacity in exercise of his mandate as Executive Director. He stated that the personal joinder is misconceived and warranting his striking out with costs. He further urged that the motion be dismissed with costs to the Respondents as it is devoid of merit, procedurally premature and constitutes an abuse of court process.
10. In rejoinder, the Applicant in his supplementary affidavit deposed that 2021 Manual is an unconstitutional and illegal document that has never formed part of his contract and therefore is inoperable. He averred that the imposition of the said Manual upon him and its illegality is the substratum of this application. He contended further that the career progression guidelines for staff 2021 is also unconstitutional and illegal document that does not form part of his contract; on account of constitutional and statutory invalidity. He accused the Respondents of being on an errand of their own creating their own views on the day to day supervisory and corrective measures. He argued that a warning letter is not one of the penalties stipulated in the PSC Act. He deposed that the 2nd Respondent is expected to have its own human resource instruments and cannot therefore rely on the Manuals by the PSC.
11. He deposed that the Court’s jurisdiction is to intervene where an illegality or unconstitutionality is alleged and therefor the issue on prematurity and ripeness is a non-issue. He argued that the 1st Respondent has not been wrongly joined as he is a decision maker and the sole initiator and author of the impugned decision. He added that as a creature of section 10 of the Act, he is the right and proper party to be called out to account. He contended that despite the Respondents’ dispositions, they failed to address any of the issued he has raised in his application. He stated that he has no contract of service with the 2nd Respondent that includes the 2021 Manual and that his contract of service dated 17th October 2011 doesn’t make any reference to any manual. He contended that he has not signed any revised contract of service or in any way demonstrated his consent to the Manual. He concluded that the Respondents have not controverted any of his dispositions and therefore the same are unchallenged.
Submissions
12. The Applicant through his counsel’s submissions and supplementary submissions raised the following cumulative issues for determination: whether the Court has jurisdiction to entertain, hear and determine the Application; whether paragraph 11.13 of the 2021 Manual is illegal and unconstitutional; whether the 2nd Respondent’s human resource instruments are valid; whether the Respondents have controverted the issues raised in the Application; and what remedies should ensue.
13. On the first issue, it was argued that it is trite that a party that alleges constitutional or statutory violation has direct access to the Courts. In support thereof, he placed reliance on the Supreme Court case of Nicholus v Attorney General & 7 others; National Environment Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR). On the second issue, the Manual was termed as unconstitutional for reasons that it offends the provisions of section 69(3) of the PSC Act, section 12 of the Fair Administrative Actions Act, Article 50(1) of the Constitution and paragraph 11.7.1 of the 2nd Respondent’s Manual. He added that the impugned paragraphs deny the Applicant the rights and guarantees provided for under section 4 of the Fair Administrative Action Act, and violate the rules of natural justice. Reliance was placed on the case of Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR). In submitting that an Act that violates rules of natural justice should be nullified, reliance was placed on the case of David Oloo Onyango v The Attorney General [1987] KECA 56 (KLR).
14. On the third issue, he argued that the SCAC lacked power to approve human resource instruments as the same is exclusively vested in the PSC by Article 234(f) of the Constitution and section 56 of the PSC Act; thus, the impugned instruments are illegal, unconstitutional and invalid and the motion be allowed on those grounds. Reliance was placed on the decision in Federation of Kenya Employers (COFEK) suing through its officials namely Stanley Mutoro, Ephraim Kanake & Henry Ochieng v National Social Security Fund Board of Trustees & Another; Cabinet Secretary, Ministry of Labour & Social Protection [interested party] [2022] KEELRC 248 (KLR).
15. On the fourth issue, it was submitted that the failure by the Respondents to address the issue on validity of imposition of a warning letter without due process, and in violation of rules of natural justice and the right to be heard, renders the motion successful. The Response was termed evasive.
16. On the fifth issue, in submitting that the motion should succeed, it was argued that there can be no penalty or punishment to be imposed upon any Kenyan without due process. On whether a written warning is a punishment or penalty, reliance was placed forms of punishment prescribed under paragraph 11.12 of the Manual. The Court was urged to disregard the assertion that the same is a corrective, advisory and non-punitive administrative measure.
17. The Respondents through their counsel’s submissions raised the following issues for determination: whether the motion is premature and offends the doctrine of exhaustion; whether the relief sought is within the purview of section 9(4) to be granted exemption from the doctrine of exhaustion; whether the 1st Respondent had authority to issue the impugned warning letter; whether the warning letter constitutes a disciplinary decision attracting constitutional and statutory safeguards; whether the Applicant has established a violation of Article 47 and 50 of the Constitution; whether this Court should interfere with internal human resource processes; whether paragraph 11.13 of the Respondent’s Human Resource Policy and Procedure Manual 2021 is illegal and unconstitutional; whether the human resource of the 2nd Respondent are valid; whether the 1st Respondent is improperly joined in personal capacity; whether the 1st Respondent acted ultra vires by issuing the impugned warning letter dated 25th August 2025 to the Applicant.
18. On the first issue, reliance was placed on the case of Chovu v Director of Criminal Investigations and 7 others; Awale Transporters Limited & 2 others (interested parties) on the doctrine of ripeness limiting court’s jurisdiction. It was submitted that the Applicant has not suffered any adverse disciplinary outcome to warrant judicial intervention. The Applicant was accused of bypassing clear available internal remedies in violation of the doctrine of exhaustion. Reliance was placed on the decision in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) and section 9 of the Fair Administrative Action Act. Further reliance was placed on section 74(1) of the PSC Act and Regulation 68 of the PSC Regulations 2020.
19. It was added that the 2nd Respondent is a statutory public body whose legal disciplinary framework falls within the ambit of section 74(1) of the PSC Act. It was submitted that section 3 of the PSC Act provides for the applicability of the provisions of the PSC Act to public institutions including the 2nd Respondent. It was added that the interpretations section of the PSC Act further defines conditions of service to include matters relating to grievances and disciplinary control. It was argued that disputes regarding disciplinary control relating to the 2nd Respondents employees falls within the statutory regime governed by the PSC Act. It was further submitted that the 2nd Respondent’s manual at paragraph 11.23 provides for lodging of appeals and applications for review. It was argued that the Applicant’s failure to utilize the internal procedures demonstrates a deliberate circumvention of established internal channels. Support was gathered from the decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille [2017] eKLR and Susan Khakasa Oyatsi v Judicial Service Commission [2022] KEELRC 3 (KLR). It was argued that since no disciplinary process has been commenced and the internal mechanisms remain fully available, the threshold for judicial intervention has not been satisfied. As such, the motion was termed as speculative, incompetent and an abuse of process and therefore ought to be dismissed with costs.
20. On the second issue, it was submitted that section 9(2& 3) of the Fair Administrative Action Act bars courts from reviewing administrative actions unless internal remedies have been exhausted. It was argued that the facts of the case do not present exceptional circumstances provided for under section 9(4) of the Fair Administrative Action Act. To buttress their submissions, reliance was placed on the decision in Opiyo v Anglican Church of Kenya & 8 others [2026] KEHC 1987 (KLR).
21. It was submitted that the Manual provides a clear grievance resolution pathway beginning from the immediate supervisor, escalating to the Executive Director and culminating in appeals. It was argued that the Applicant has failed to demonstrate that any of the steps are inadequate or futile. The Court was urged to exercise its discretion conservatively in line with the principle that judicial intervention is exceptional. The Court was further urged to decline to exempt the Applicant from exhausting all internal mechanisms and further direct him to exhaust all available internal mechanisms.
22. On the third issue, it was argued that the Applicant’s contention is legally untenable as it misapprehends the distinction between supervisory intervention and formal disciplinary control within the public service. It was submitted that the impugned letter falls within the routine managerial intervention within the operational mandate of the 1st Respondent as donated under section 10 of the Act. Counsel submitted that the career progression guidelines place the Applicant directly within the 1st Respondent’s supervision. It was contended that paragraphs 11.13 and 11.15 of the Manual expressly authorizes supervisors to address instances of minor misconduct through informal corrective measures including the issuance of warning letters. Their argument is that such a letter is not only permitted but is also an integral part of internal performance management. It was argued further that a warning letter serves as a preliminary and corrective administrative tool intended to address conduct at an early stage and forestall escalation into formal disciplinary proceedings. It was added that the letter was a lawful exercise of supervisory authority firmly grounded in statute, policy, and established administrative practice.
23. On the fourth issue, it was submitted that the nature and effect of the letter must be examined objectively. It was reiterated that the same is a preliminary managerial intervention and not a disciplinary determination as it does not trigger the elaborate procedural protections contemplated under section 69.
24. On the fifth issue, it was submitted that for Article 47 of the Constitution to be invoked, there must be identifiable administrative action/decision that adversely affects the rights or interests of a person. It was submitted that the Courts have on numerous occasions laid a distinction between administrative actions with legal consequences and ordinary managerial or operational acts within institutions as observed in the case of Republic v Commissioner of Customs Services ex-parte Africa K-Link International Limited [2012] eKLR. It was added that the Applicant has not demonstrated any imminent or actual infringement of rights arising from the letter. On the right to a fair hearing, it was submitted that the invocation of Article 50 is misplaced, exaggerated and legally unsustainable as no adjudicative process has arisen to trigger the protection under this Article. It was urged that the constitutional claims are unfounded.
25. On the sixth issue, it was submitted that the Applicant’s intention is to invite this Court to micro-manage the supervisory functions and supervise the Respondent’s day-to-day administrative decisions. It was argued that the same is not constitutionally permitted as it undermines the autonomy and operational efficiency of public entities. The Court was invited to exercise caution in observance of the doctrine of judicial restraint, in order to avoid interfering with the administrative and HR processes unless there is evidence of illegality, irrationality, procedural impropriety or manifest unfairness. In support, reliance was placed on the decision in Republic v National Water Conservation & Pipeline Corporations & 11 others. The Court was urged to decline to interfere with the internal HR process at this stage.
26. On the seventh issue, it was submitted that the impugned paragraph 11.3 of the Manual merely sets out the procedural framework for managing minor and major employee misconduct within the authority. It was added that it is fully consistent with statutory provisions under the PSC Act. It was submitted that it delineates a structure approach to warning, investigations, show cause procedures and disciplinary hearings. It was added that the Manual explicitly distinguishes between minor offences attracting preliminary warnings and major offences or gross misconduct requiring a formal show cause process and full disciplinary hearing. It was submitted that the paragraphs 11.13.1 to 11.13.8 provide for the first, second and final warnings for minor offences, with clear timelines and required documentation. Paragraph 11.13.9 was said to provide procedural safeguards for more serious offences. It was submitted that the steps demonstrate compliances with constitutional guarantees of fair administrative action and the right to fair hearing ensuring that any employee facing potential disciplinary action is afforded procedural fairness at every stage. It was argued that the impugned paragraphs do not therefore contravene constitutional and statutory provisions; rather, it operationalizes them within a clear, lawful and internal framework for grievance handling and discipline.
27. On the eighth issue, it was submitted that the Manual is valid, lawful and binding, having been properly developed and approved in accordance with the applicable legal framework governing state corporations at the material time. It was submitted that at the time of its approval the SCAC had been established under section 27 of the State Corporations Act. Consistently, the Manual was duly approved by the 2nd Respondent’s board and subjected to the review, harmonization and advisory oversight by SCAC to ensure alignment with the public service standards and government policy. Consequently, it acquired the full legal force as a valid internal governance instrument regulating employment, discipline and administrative procedures within the Authority.
28. In further submission, reliance was placed on the decision in Anthony v Communications Authority of Kenya & 3 others (Petition E161 of 2021) [2022] KEELRC 1117 (KLR), where court observed the legal status and enforceability of human resource instruments developed by state corporation within applicable statutory and public service framework. It was added that the Court further observed that such instruments are not merely administrative guidelines but form part of the regulatory and contractual framework governing employees and are therefore enforceable unless demonstrated to be unlawful or inconsistent with statute or constitution.
29. It was argued that the 2021 Manual forms an integral part of the Applicant’s contractual and statutory employment framework as his own appointment letter subjects him to the Human Resource instruments; as may be amended from time to time. It was argued further that the Applicant cannot approbate and reprobate by invoking the manual when it is beneficial and impugning its validity when its provisions are applied. It was submitted that following the suspension of the 2025 Instruments by a Circular dated 16th May 2025, issued by the Head of Public Service, the 2021 Manual remains to be the only valid and operative framework governing the 2nd Respondent’s human resource and disciplinary processes.
30. It was contended that the Applicant has not demonstrated any illegality in the approval and adoption of the 2021 Manual; to prove that the same was approved contrary to any written law, or the existence of any procedural impropriety in its formulation. It was argued that the Applicant’s grievance is not related to the validity of the Manual per se, but rather, the lawful exercise of supervisory and managerial authority within the framework of the Manual. It was urged that the invalidation of the annual would undermine the lawful internal governance structure of state corporations, disrupt established public service human resource frameworks and invite unwarranted judicial interference in routine administrative functions, contrary to constitutional values of good governance, efficiency and institutional autonomy. It was urged that the Applicant’s challenge to the validity of the Manual is devoid of legal foundation and ought to be rejected with costs.
31. On the ninth issue, it was reiterated that the 1st Respondent was improperly joined in the proceedings as the actions complained of were undertaken strictly in discharge of official duties and within the scope of lawful statutory mandate. It was contended that the pleadings and the evidence on record do not disclose any basis of personal liability as against the 1st Respondent. It was urged that for personal liability to attach to a public officer, there must be clear and specific proof of impropriety, bad faith, malice, illegality, and actions taken outside statutory authority. Reliance was placed on the decision in Langat v Shikondi & 4 others [2023] KEHC 25301 (KLR).
32. On the tenth issue, it was submitted that the issuance of the warning letter was lawful, proper and within the 1st Respondent’s mandate, and according to applicable policy and procedures governing the Authority’s operations. The same was termed as having been undertaken in good faith in exercise of lawful supervisory functions. In Conclusion, the Respondents urged the Court to dismiss the motion, strike out the 1st Respondent and confirm that the warning letter does not constitute disciplinary action.
33. In response to the Respondent’s submissions, the Applicant in his supplementary submissions, submitted on issue on delegation of powers by the PSC. Reliance was placed on the decision in Anthony v Communications Authority of Kenya & 3 others (Supra) (KLR); to argue that the PSC revoked its delegated powers to SCAC on 30th September 2019. It was added that the impugned instruments were approved by SCAC two years of the said revocation. It was argued that this Court has held that instruments not approved by PSC are inoperable, null and void and should not be adopted, implemented or in any way dealt. The Court was urged to hold the same stance.
34. It was argued further that the principles under section 69 of the PSC Act were designed to protect public officers from arbitrariness from supervisors in imposing whimsical penalties and punishments.
35. On the doctrine of exhaustion and applicability of section 74(1) of the PSC Act, it was submitted that the doctrine is inapplicable as this is an issue on interpretation and application of the Constitution and statute, a preserve of the Court. It was added that this Court settled in of Kamau v Kenya Accreditation Service [2021] KEELRC 8 (KLR), that the PSC is ill-suited and not the proper forum to determine issues of illegality.
36. On whether the matter can be referred to PSC, it was submitted that the same cannot as there is no decision capable of being appealed to the PSC. On whether the 1st Respondent is properly joined, it was submitted that the Applicant has pleaded malice on his part which makes him personally responsible and accountable as he has no immunity under section 14 for malicious acts.
Analysis
37. It is not in dispute that the 1st Respondent was issued a warning letter upon the Applicant on account of misconduct. What is in issue is whether the 1st Respondent has the capacity to institute disciplinary measures against the Applicant and whether the Manual relied upon by the Respondents is valid, more so, the constitutionality and validity of paragraph 11.13.
38. On fairness of administrative actions, Section 4 of the Fair Administrative Action Act provides that:
“1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
2. Every person has the right to be given written reasons for administrative action that is taken against him.
3. Where administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a. Prior and adequate notice of the nature and the reasons for the proposed administrative action;
b. An opportunity to be heard and to make representations in that regard; …”
39. The basis of Judicial Review Applications was outlined by the Ugandan case of Pastoli v Kabale District Local Government Council & others (2008) 2 EA 300, where the court stated that:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
Illegality, is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality.
Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.
Procedural impropriety, is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi…Vs… Secretary of State for the Housing Department (1990) AC 876.”
40. Similarly, in Council of Civil Service Union v Minister for the Civil Service (1984) 3 ALL ER 935 the court had this to say regarding irrationality of decisions: -
“By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness … it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
41. In order to establish whether the Respondents’ decision was irrational, it is important to evaluate the letter in question. The impugned letter by the 1st Respondent read as follows:
“Our Ref: 201112058 Date: Monday, August 25,2025.
Johnson Otieno Adera
Director Legal Services
P.O. Box 7495-00300
Nairobi.
Dear,
RE: FAILURE TO COMPLY WITH INSTRUCTIONS – ABC SILICONE FILE AND CORRESPONDENCE TO ODPP AND THE COURT.
I refer to my earlier instructions requiring you to urgently furnish this office with the complete ABC Silicone Limited file, together with copies of all the related correspondences addressed to the Office of the Director of Public Prosecutions (ODPP) and the Court.
Despite repeated reminders, you have not complied. Instead, your responses have been evasive and have failed to address the clear directives issued. This conduct is unacceptable. Both the Human Resource Policy and Procedures Manual 2021 and the Employment Act 2002 are explicit.
• Section 10 and 11 of the HR Manual require employees to promptly comply with lawful instructions, uphold professionalism, and avoid obstruction of official duties;
• Section 44(4)(a) and (e) of the Employment Act provide that wilful neglect to perform duties or failure to obey lawful instructions from a supervisor amounts to gross misconduct, which may justify summary dismissal.
You are therefore directed to:
1. Within five (5) working days, supply my office with a complete copy of the ABS Silicone file;
2. Provide all related correspondences exchanged with ODPP and the Court regarding this matter; and
3. Confirm in writing that no material documents have been withheld.
Be advised that failure to comply with these instructions will result in invocation of the relevant disciplinary provisions of the HR Manual and the Employment Act.
This communication serves as a final demand and warning.
Dr. Robi Mbugua Njoroge.
EXECUTIVE DIRECTOR.”
42. The Applicant in his response to the letter raised concerns that: he was unwell and as a result of his medical condition, he was not in the office; he could only respond to lawful, reasonable and regular instructions, as those issued to him were malicious and a witch-hunt; the responsibilities he is engaged in and is paid for out of public funds, do not include investigations; it was strange that the 1st Respondent insisted to be supplied with the complete ABC Silicone Limited file, whereas the original and complete file was either in the 1st Respondent’s office or with enforcement, wherefrom a complete copy could be obtained; had the 1st Respondent been acting in good faith, he would use the original file in his office in which he made a decision contrary to the decision to charge; the decision to not charge was as a result of the corrupt and illegal practices at the enforcement directorate that he had brought to the 1st Respondent’s attention, but who did not take any action; the recommendation letter to the DPP was shared with the 1st Respondent, who kept his decision from the Applicant on concept of “prior use”, indicating his displeasure with the DPP’s acceptance of the recommendation to charge; he denied knowing any documents withheld or any material the 1st Respondent was talking about; he raised the issue on the 1st Respondent’s conflict in the matter, which the 1st Respondent was yet to respond to; he provided evidence of the 1st Respondent’s support of the criminal suspects in both the criminal matter and at the High Court; in light of the 1st Respondent’s conflict that was yet to be resolved, he would not discuss the civil file with him as the same was privileged; he has a duty and responsibility to represent ACA professionally and that included not sharing confidential information in the file including litigation strategies with conflicted persons or entities; he occupied the position that the 1st Respondent had no lawful authority in the matter and more specifically to issue him with a warning; and the issue on authority was one to be decided by the Court.
43. The Applicant’s contention is that the 1st Respondent lacked authority to discipline him as the same lay with the Board and therefore the warning letter was invalid. The Respondents on the other hand, while relying on clause 11.13 and the Applicants appointment letter, argued that the 1st Respondent is vested with the authority to reprimand the Applicant, in his capacity as his immediate supervisor.
44. Clause 11.5.2 dictates that the discipline of members of staff in Grades ACA1 to ACA 3 shall fall within the purview of the Board. Does this therefore take away the 1st Respondent’s power to discipline the Applicant? I have perused the Manual and I find that the same is quite ambiguous on the disciplinary procedure for employees in ranks ACA 1-3. However, it is important to employ a purposive interpretation of the Manual holistically borrowing from the sentiments of Nzioki wa Makau J in the case of Nicholas Otieno v Patco Industries Limited [2013] KEELRC 98 (KLR) where the Judge observed that:
“ … Lord Denning in the case of Notham v. London Borough of Barnet (1978) 1 WLR 220 held the purposive interpretation was permitted to “promote the general legislative purpose underlying the provisions”.
14. The House of Lords in the case of Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (HL) had occasion to delve into the issue of interpretation. Viscount Simonds sat alongside Lord Normand, Lord Morton of Henryton, Lord Tucker & Lord Somervell of Harrow in the unusual claim to British nationality now known as the Prince of Hanover case. At page 461 Viscount Simonds stated as follows:-
“So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.”
15.An authority on the subject Sir Rupert Cross in his book Statutory Interpretation (3rd ed, 1995), gave vent to the unified approach to interpretation. In this postulation, the following are the combination of approaches used. The judge begins by applying or using the grammatical and ordinary or technical meaning of the context of the piece of legislation and if this produces an untenable or absurd result then the judge may apply any secondary meaning possible. The judge may imply words into the statute or alter or ignore altogether some words to prevent a provision from being unconstitutional, unintelligible, unworkable or absurd. In applying these rules the judge may resort to various aids and presumptions.”
45. Clauses 11.13.1 to 11.13.6 provide for warning letters and their effect. Sub-clause 1 provides that a first warning letter should be given to an officer by his or her immediate supervisor. The Applicant’s appointment letter directs that the Applicant reports to the Executive Director for instruction and deployment. Additionally, under the job specification for Director Legal services in the Career Progression Guidelines for staff, it is explicit that the Director is responsible to the Executive Director in the performance of his roles. That said, it follows that the 1st Respondent is the Applicant’s supervisor and therefore empowered by the Manual to issue a warning letter to the Applicant. Consequently, it is the finding of the court that the 1st Respondent had authority to issue the impugned letter.
46. It has been held that it is not the role of the court to interfere with the internal disciplinary processes of an employer. This position was appreciated in the case of Jackson Butiya vs Eastern Produce Kenya Limited (Industrial Court Cause No 335 of 2011) where this Court stated that:
“… It is not the role of the Court to supervise the internal grievance handling processes between employers and employees. The role of the Court is to ensure that such processes are undertaken within the law.”
47. The same was further expounded by the Court in Mworia v Water Resources Management Authority & 2 others [2015] KEELRC 1124 (KLR) where the court observed that:
… The general principle is that the court shall not interfere in the employer’s entitlement to undertake these functions and interference by the court shall be exercised very sparingly. The court’s rare intervention can be justified on account of obvious breach by the employer of the statutory or agreed due process or such other manifest injustice and in circumstances whereby the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process....”
24.The principles are clear.
25.The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.
48. In addition to internal mechanisms, it is trite that where a public officer is aggrieved by a decision made by the employer, appeals shall lie with the PSC. The Applicant’s contention is that the Manual is invalid by dint of the PSC Circular that reserved the right to approve guidelines to the PSC. The said Circular is dated 8th August 2023 and provides as follows at paragraph 3:
“with effect from the date of this circular, any newly developed or reviewed Human Resource Management Instruments, or proposals for establishment of new offices, or abolition of offices should comply with the guidelines herewith and be submitted to the Commission for consideration and approval. Please note that any Human Resource Management Instruments released for implementation without prior approval by the commission will be considered null and void as pronounced by the Courts.”
49. From the wording of the Circular, it is apparent that only instruments implemented from the date of the circular shall be invalid. Consequently, the 2021 Manual was not affected by the 2023 Circular. Despite the Applicant’s deliberate attempt to mislead this Court by stating that the PSC Circular was for 30th September 2019, there is a clear grievance resolution mechanism that the Applicant ought to have approached before invoking this Court’s intervention. This is outlined under clause 11.5.3 which states that:
“any appeal by an aggrieved staff shall be to the Board in writing within six (6) weeks from the date of the receipt of the letter conveying the disciplinary decision.”
50. In the court’s view, it was premature for the Applicant to invoke the courts jurisdiction without filing an appeal with the board of directors of the 2nd Respondent. A resolution of the board on the matter was necessary. The Applicant provided no reason why he did not appeal to the board of directors, yet he acknowledged it was the only body that had disciplinary powers over him subject to statutory limitations under the Public Service Commission Act.
51. In his application and submissions, the applicant in seeking exemption from the doctrine of exhaustion, arguing that the matter at hand could not be referred to PSC as the same was based on interpretation and application of the Constitution and statute, a preserve of the Court. It is therefore apparent that this is an issue at hand is one on infringement of rights, statutory interpretation and compensation. This by itself does not fall within the purpose of Judicial review.
52. In dismissing the same on account that it should have been proffered by way of Petition and not Judicial Review Application, I am guided by Rule 4 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, (the Mutunga Rules) that provide as hereunder:
4. Contravention of rights or fundamental freedoms
(1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.
53. Rule 10 of the said Rules further provides for the form in which a Constitutional Petition should take as follows:
10. Form of petition
(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g)the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
54. Similarly, the reliance is placed on the reasoning in Commissioner of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR) where the Court of Appeal held that:
… But it must be remembered that judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision-making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected. (See; R v. Secretary of State for Education and Science ex parte Avon County Council [1991] 1 ALL ER.282, at p. 285.). The Point was more succinctly made in the English case of Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, by Lord Hailsham of St. Marylebone, thus:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court."
55. From the foregoing, the court finds that the Judicial Review Application should fail in its entirety as the prayers sought do not fall within the ambit of Judicial Review as observed by Mativo J, in Republic v Board of Management, [Particulars Withheld] Schools & another Ex parte PK [2019] KEHC 11215 (KLR) as follows:
12. Judicial Review Remedies are meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the Rule of Law. The courts when exercising this power of construction are enforcing the Rule of Law, by requiring administrative bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. Judicial review is the procedure used by the courts to supervise the exercise of public power. It is a means by which improper exercise of such power can be remedied and it is therefore an important component of good public administration.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI
ON THIS 28TH DAY OF MARCH, 2026
DR. JACOB GAKERI
JUDGE
ORDER
In 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 has 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.
DR. JACOB GAKERI
JUDGE