REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E041 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PROFESSOR MARY ABUKUTSA-ONYANGO……………..… PETITIONER
VERSUS
PUBLIC SERVICE COMMISSION OF KENYA & MASENO UNIVERSITY…………………………………………..….……...... RESPONDENT
RULING
Before the Court for determination is the Applicant’s Chamber Summons dated 14th April, 2026 filed under Certificate of Urgency seeking;
(i) Leave to apply for order of certioravi, mandamus and Prohibition against the Respondent and the grant of leave do operate as a stay of the on-going recruitment process for the position of Vice-Chancellor of Maseno University, any interview, deliberations shortlisting outcomes and/or final appointment arising therefrom, any further steps arising from an connected to the impugned process pending the hearing and determination of the substantive application.
(ii) Leave to apply for such further relief as the court may deem fit and just in the circumstances.
(iii) Costs of the Application be provided for.
Respondent’s case
By a Replying Affidavit sworn by Mr. Paul Famba, the Secretary CEO of the Public Service Commission, the affiant deponed that the evidence availed by the Applicant to show that she applied for the position of Vice-Chancellor of Maseno University was illegible and difficult to make any conclusion that her application was received by the commission.
That the mode of submission alleged was contrary to the norm and two applications were received but one was not and the alleged receipt stamp was not the norm.
That the applicant’s allegation of having received an informal telephone communication lacked legal validity as no evidence was availed.
That vide letter dated 15th April, 2026, the Respondent informed the applicant that it did not have any record of her having submitted an application for the position of Vice-Chancellor Maseno University.
That the commission had no interested in denying any Kenyan opportunity to apply for any position including the applicant and could not hide the applicant’s application yet the others were recorded as having been received and in the case of Maseno University the Applicant was not identified as one of the applicants for the position of Vice-Chancellor.
That by 16th April, 2016 the commission had concluded the recruitment process and the application had been overtaken by events.
The Respondent relied on copies of the register of applications received for the three Universities as at 9th /January 2026 which was the closing date for the application for Kenyatta University, the Applicant’s application was listed as serial number 10 and for the University of Nairobi the application was serial number 3 in the 2nd band of 10 applicants or 13 in the list of applications.
In the case of Maseno University, the Applicants name was conspicuously missing from the list of 12 applicants.
It also annexed its response to the Applicant’s complaint dated 15th April, 2026.
To substantiate her case against the Respondent the applicant deponed that she applied for the position of Vice-Chancellor Maseno University Kenya University and University of Nairobi pursuant to a declaration of vacancies by the Respondent and availed copies of the letters submitted and the application stamped by the Respondent, evidence of complaint to the commission submitted on 12th April, 2026 at 10.00 37 am and the letter received on 13th April, 2026 but dated 11th April, 2026.
Counsel’s canvassed the application by way if oral submission. Simiyu submitted that her client has evidence of having submitted application for the position of Vice-Chancellor in the three University before the deadline, complained via email to the Public Service Commission and wrote a complaint letter dated 11th April 2016 stamped on 13th April, 2026 and equally complained to the Ombudsman but yet to be responded to and the substantive motion would show that the Applicant ought to be interviewed.
Mr. Odukenya submitted that the applicants letter dated 11th April, 2026 was served on 13th April, 2026 and responded to vide letter dated 15th April, 2026, and communicated the respondent’s position that only two applications had been received and none for Maseno University.
Counsel submitted that the allegation that the blurred stamp on the application letter was because it was taken in a hurry was untrue.
That applications to the Public Service Commission were always accepted in sealed envelopes and are subsequently unsealed and recorded and there was no record of the application for Maseno University.
Counsel wondered why other documents were not photographed and in any event the clerk had no authority to unseal an application for a photograph of the same and the applicants’ allegations were untrue.
Counsel submitted that the Public Service Commission deliberated the issue but it had no application on record and the commissions hands were tied as jobs were for those who applied for them.
Counsel prayed that leave be denied and the process had been concluded.
In a rejoinder, Simiyu submitted that the Respondent’s response to the complaint was an after thought because it was dispatched on 16th April, 2026 and the email was un responded to expeditiously. However, the email was not filed.
That interviews were to be conducted from 14th-16th April, 2026.
Analysis
It is common ground that the Respondent declared vacancies for the position of Vice-Chancellor (herein after) Vice-Chancellor in three Public Universities namely University of Nairobi, Kenyatta and Maseno University and the deadline for applications was 9th January, 2026.
From the evidence on record, it is unclear when the vacancies were declared.
It is equally not in dispute that the Applicant herein applied for the position of Vice-Chancellor at the University of Nairobi, and Kenyatta University and evidence reveals that the Respondent received the applications for University of Nairobi and Kenyatta University and the Applicant was shortlisted for interview for the University of Nairobi.
While the applicant averred and Counsel submitted that the applicant submitted her application for the position of Vice-Chancellor Maseno University, the Respondent maintained that it had no record of the alleged application and the evidence relied upon was ineligible and thus unreliable.
While it is true that the applicant wrote a complaint to the Respondent, which was submitted on 13th April, 2026, a copy of the alleged email communication was not produced as evidence.
Seconds, the receipt stamp allegedly inserted at the Respondents office is too blurred for evidential purposes.
Puzzlingly, none of the parties could enlighten the court as to when the list of applicants and shortlisted candidates or the position of Vice-Chancellor at Maseno University was published. Thus, was article in determining whether the applicant’s complaint was filed without undue delay.
It is also discernible that the applicant did not present the application or any letter to the Respondent in person. She relied on a 3rd party whose particulars were not provided and which could be provided in the substantive motion.
While the applicant’s evidence that tow application was received and acted upon could be persuasive evidence that the 3rd application was also submitted the Respondents record of the applications received showed otherwise and the alleged receipt stamp on the letter is said to be uncear.
Needless to be labour, the principles that govern the grant of leave to apply for Judicial Review Orders of Mandamus Prohibition and Certioravi are well settled.
Order 53 Rule (1), (2) (3) and (4) of the Civil Procedure Rules are clear that:
(1) No application for an Order of Mandamus Prohibition or Certioravi shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave as a foresaid shall be made ex parte to a judge in chambers and shall be accompanied by a statement setting out the name and description of the applicant the relief sought and the ground on which it is sought and by Affidavits verifying the facts relied on.
(3) The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee, insurance bond from reputable institution.
(4) The grant of leave under this rule to apply for an Order of Prohibition or an Order of certioravi shall, if the judgment so directs, operate as a stay of the proceedings in question until the determination of the application or until the judge orders otherwise.
Provided that where the circumstances so require the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within 7 days.
Under Order 53 Rule 2 of the Rates the order of Certioravi can only be made where the application for leave is make within 6 months from the date of the proceeding or as prescribed by the Act and where proceeding is subject to appeal the period, the law provides for the filing of the appeal or the judge may adjourn the application until the appeal is heard and determined if the court so ordered.
The grant or refusal of leave to apply for Judicial Review Orders involves the e exercise of judicial discretion which must be exercised judiciously.
See County Government of Kitui v Torgbour & another (026) KECA 121 (KLR).
In Meixner & another v Attorney General (2005) 2klr 189 on the Court of Appeal had this to say on the objective of leave.
“The leave of court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to fitter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion. The test, to be applied in deciding whether or not to grant leave is whether the application is arguable or not.”
Similarly in Agha Khan Education Service Kenya v Republic & others (2004) E.E.A 1 the Court of Appeal held:
“Once there is an arguable case, leave is to be granted and the court at that stage is not called upon to get into the matter in depth.”
On whether or not leave should operate as stay or not judicial authority has it that twin issue ought to be determined at the same time as grant of leave. This position is fortified by the holding of the Court of Appeal in Republic v Commissioner of Co-operative Ex parte Kirinyaga Tea Growers Co-operative Savings and Crefit Society Ltd (1999) IEA 245 at 247 thus:
“From the provisions we have set out it is clear to us that a judge has no power to separate the granting of leave “ex parte” from the issue of whether nor not such leave shall act as a stay. The judge at the stage of granting leave whether or not such a grant shall act as a stay, there is no power to make on a position of the chamber summons ex parte and the other portion of it to be heard.”
Applying the foregoing principles to the instant application, the court is satisfied that the Applicant has an arguable case in the first instance and the application for leave is merited.
Relatedly, since the process the applicant is challenging is pending conclusion, the prayer that leave act as stay appears merited to in the interest of justice.
The upshot is that the Applicant’s Chamber Summons dated 14th April, 2026 is allowed as prayed save for costs.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27th DAY OF APRIL, 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
| ELRC NAIROBI JR E041 OF 20262 OF 9 |