[1] The petitioners are elected and nominated members of the County Assembly of Homa Bay. They filed this Petition seeking declaratory and other orders against the respondents in connection with the appointment of the interested party, Hanningtone Ochieng Owino Day, as the Acting Clerk of the County Assembly of Homa Bay. Concomitantly, the petitioners filed a Notice of Motion for conservatory orders pending the hearing and determination of both the Petition and the application.
[2] In response to the Petition and the application, the 4 th respondent and the interested party filed a joint Notice of Preliminary Objection dated 15 th September 2025 on the grounds that:
[a] T he Court does not have jurisdiction to entertain the petition herein that questions a matter of secondment, deployment and employment of the interested party by the 1 st respondent.
[b] The Public Service Commission and/or the Employment And Labour Relations Court are the correct forums for ventilation of such an issue under Section 77 of the County Governments Act, Cap 265 and Section 12 of the Employment and Labour Relations Court Act, Cap 8E of the Laws of Kenya.
[3] In the same vein, 1 st and 2 nd respondents filed a Notice of Preliminary Objection dated 16 th September 2025, contending that:
[a] By dint of the provisions of Section 77(l) of the County Governments Act, 2012 and Regulations 4 of the Public Service Commission (County Appeals Procedures) Regulations, 2022, this Court lacks the requisite jurisdiction to entertain, hear or determine the application and the Petition given that the subject matter relates to the secondment, deployment, employment and engagement of the interested party; which is a matter for the Employment and Labour Relations Court and or the Public Service Commission.
[b] The petitioners lack the locus standi to raise, lodge or prosecute the Petition.
[4] Accordingly, the 1 st , 2 nd and 4 th respondents as well as the interested party prayed that the Petition herein be dismissed with costs.
[5] The preliminary objections were canvassed by way of written submissions pursuant to the directions given on 18 th September 2025. In their submissions, the 1 st and 2 nd respondents contended that the Petition offends the provisions of Section 77 of the County Governments Act in so far as the issues pleaded in therein relate to and are about the secondment and purported appointment of the interested party as the Acting Clerk of the Homa Bay County Assembly.
[6] The Section aforesaid provides that any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission. It was therefore the contention of the 1 st and 2 nd respondents that the Commission has the mandate to entertain appeals on any decision relating to employment of a person in the County Government set up, including a decision in respect of recruitment, selection or appointment.
[7] On the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696, The Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (1989) KLR 1 and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLR, the 1 st and 2 nd respondent submitted that in the absence jurisdiction the Court has no basis for entertaining either the Petition or the interlocutory application filed therewith. They also relied on the Public Appointments (Parliamentary Approval) Act, 2011, an Act of the Parliament that provides for procedures for parliamentary approval of constitutional and statutory appointments and for connected purposes.
[8] The 1 st and 2 nd respondents further submitted that petitioners were enjoined to first raise the matter of the secondment and purported appointment of the interested party with the Homa Bay County Public Service Board; and require the Board to undertake investigation on the matter and make a decision on the same. That it was only after exhausting that avenue that they would be justified in seeking the intervention of the Court. They also pointed out that, even then, the court with jurisdiction in such matters is not the High Court but the Employment and Labour Relations Court, in accord with Section 12 of the Employment and Labour Relations Act, (Cap 8E).
[9] It was therefore the contention of the 1 st and 2 nd respondents that the Petition offends the doctrine of exhaustion. They relied on the following authorities to buttress their arguments:
[a] Nyaoga v Chairman Kisii County Assembly & 3 others (Civil Appeal E034 of 2023) [2023] KECA 1540 (KLR);
[b] Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another [2015] eKLR;
[c] Geoffrev Muthinja & another v Samuel Muguna Henry & 1756 Others [2015] eKLR;
[d] William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others: Muslims for Human Rights & 2 Others (interested parties) [2020] eKLR;
[10] Accordingly, the petitioners prayed for the striking out of the Petition with costs.
[11] The 4 th respondent and the interested party relied on their written submissions dated 17 th November 2025. They similarly argued that since the petitioners herein are seeking to challenge the secondment and appointment of the interested party to his current job as the Acting Clerk of the County Assembly of Homa Bay, they ought to have filed their complaint before the Public Service Commission pursuant to Section 77 of the County Governments Act. They further submitted that, where it is contemplated that an employee’s appointment, promotion, deployment, secondment, rights or obligations are in dispute, such as the interested party herein, the correct court to parade such a challenge for determination is the Employment and Labour Relations Court; which is a specialized court created in the Constitution to deal with such issues.
[12] Lastly, the 4 th respondent and the interested party pointed out that, since the petitioners are members of the County Assembly of Homa Bay, they ought to have referred their complaint to the Human Resource Committee of the Assembly for investigation and action before escalating it elsewhere, as provided for in the Standing Orders of the Assembly. They therefore contended that the failure by the petitioners to exhaust the dispute resolution forums provided for in the Standing Orders is a violation of the exhaustion principle; and therefore, on that ground alone, the Petition should be dismissed with costs.
[13] As was pointed out in Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd:
“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”
[14] Likewise, in Oraro vs. Mbaja (supra) the principle was restated thus by Hon. Ojwang, J. (as he then was):
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[15] With the foregoing in mind, I have given careful consideration to the Preliminary Objection raised by the respondents and the grounds relied on by them in seeking the striking out of the Petition. I have similarly taken into consideration the written submissions filed by the parties. The issues for determination, as well summarized by the parties, are:
[a] Whether the Court has jurisdiction to entertain the present Petition.
[b] Whether the petition offends the doctrines of constitutional avoidance and exhaustion.
[16] Clearly, the issue of jurisdiction is key to the resolution of the other points of objection raised by the respondents. It would be inconsequential for a court of law to proceed to hear and determine a matter if it lacks the jurisdiction so to do. This was aptly expressed by the Court of Appeal in the Owners of Motor Vessel "Lilian s" vs. Caltex Oil (K) Ltd [1989] KLR 1, thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."
[17] And there is no gainsaying that the question of jurisdiction is one that must be taken in limine . In above case the Court (per Nyarangi, JA ) added that :
"...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."
[18] In the work, Major Law Lexicon, Volume 4, jurisdiction is aptly defined thus:
"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Chapter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of the actions or the matters of which the particular court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics..."
[19] Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[20] The facts relied on by the petitioners were pleaded at paragraphs 34 to 54 show that the subject matter relates to secondment and appointment of the 3 rd respondent. The reliefs sought further concretizes the petitioners’ grievance in so far as they seek revocation of the impugned appointment. Accordingly, the single issue that presents itself for determination in this Ruling is the question whether a grievance in connection with the recruitment process is a matter that can be ventilated before the High Court.
[21] The pertinent provisions are Articles 162(2), and (3), 165(3), of the Constitution as well as Section 12 of the Employment and Labour Relations Court Act. Article 165(3) states that:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[22] Sub-Article (5) of Article 165 the Constitution is however explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[23] On the other hand, Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[24] Section 12 of the Employment and Labour Relations Act stipulates that:
"The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations..."
[25] In the premises, it is manifest that this suit ought to have been filed before the Employment and Labour Relations Court. I find succor in the case of Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, in which a question arose as to whether the Employment and Labour Relations Court was properly seized of a dispute arising from a recruitment process; and it was held (by Hon. B. Ongaya, J. as he then was) that:
"As relates to jurisdiction by subject matter, Article 162(2)(a) of the Constitution and Section 12(1) of the Act are elaborate that jurisdiction attaches to this court with respect to disputes relating to employment and labour relations. In the instant case, the dispute is about a recruitment process undertaken by the respondent. The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of that subject matter."
[26] Similarly, in Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & Another [2015] eKLR, the Employment and Labour Relations Court ( Hon. Mbaru, J.) held that:
"...The orders sought relate to the Claimant seeking to stop the recruitment of 53 county education to replace the current Directors of County Education. Thus, the issues in dispute and the orders sought relate to employment and labour relations, matters directly under the jurisdiction of this court. Matters of recruitment of employees, termination of employment through whatever means - constructive dismissal/termination as well - fall under the purview of this court's jurisdiction."
[27] The petitioner urged the Court to find that this Petition raises issues fit for constitutional interpretation for which only the High Court has jurisdiction. That argument is clearly untenable in the light of the provisions of Articles 162 of the Constitution. Indeed, in Prof. Daniel N. Mugendi v Kenyatta University & 3 others [2013] eKLR, it was held that the Employment and Labour Relations Court has the jurisdiction to interpret the Constitution. The Court of Appeal expressed the following viewpoint in the matter:
"...we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects."
[28] In Okiya Omtatah v Joseph Kinyua & another [2018] eKLR, a case handled by the Employment and Labour Relations Court ( Hon. Abuodha, J.) in which the issue arose as to whether that court had the jurisdiction to entertain a dispute involving the interpretation of the Constitution, and it was held that:
"The court while would like to avoid the never ending debate on the scope of jurisdiction of this court over constitutional issues would like to state that it is erroneous to apply the test of the existence of employer-employee relationship as the main criteria for deciding whether a constitutional question arising in that context can be determined by the court. Third parties towards whom there may be no employer-employee relationship may jointly or indirectly take decisions that affect employer-employee relationship. This makes them amenable to the jurisdiction of the court. The preamble to the ELRC Act ...is wide enough and cannot by any manner of interpretation be understood to confine the jurisdiction of the court to only situations where there is in existence an employer-employee relationship. That would be too narrow interpretation."
[29] I agree entirely with the decision. In the result, I would uphold the respondents' Preliminary Objection on jurisdiction and find that this is a matter that ought to have been filed before the Employment and Labour Relations Court; and therefore that this Court has no jurisdiction to entertain it. That being my view, I must down my tools as no useful purpose would be served by considering the other issues raised by the respondents under the broad head of whether the Petition offends the doctrine of exhaustion.
[30] It is now trite that a suit filed in a court without jurisdiction cannot be transferred to another court. The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
“[153] …the purposive reading and interpretation of Article 162 together with Article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under Article 162(2) supra , must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[31] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[32] In view of the above, the respondents’ and interested party's Preliminary Objections dated 15 th September 2025 and 16 th September 2025, respectively, are hereby upheld with the result that the applicant’s Petition dated 20 th August 2025 and the Notice of Motion filed therewith are hereby struck out for want of jurisdiction.
[33] The last question to pose is, what order ought to issue on costs? It is now settled that costs follow the event and are at the discretion of the court. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, [2014] eKLR the Supreme Court issued guidelines that a court must consider when exercising its discretion to either award or deny costs as follows:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
[34] Hence, while the law gives the court discretion over the costs associated with all suits, including the power to determine who should bear those costs and to what extent, the Court must evaluate the particular circumstances of this case and determine whether they justify awarding costs to the successful parties. The Supreme Court in Jasbir Singh Rai (supra) further stated that the legal principle that costs follow the event is not absolute. The court held:
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[35] In the circumstances hereof, it is only fair that each party bears their own costs of the Petition, this being a public interest litigation.
It is so ordered.
[2] In response to the Petition and the application, the 4 th respondent and the interested party filed a joint Notice of Preliminary Objection dated 15 th September 2025 on the grounds that:
[a] T he Court does not have jurisdiction to entertain the petition herein that questions a matter of secondment, deployment and employment of the interested party by the 1 st respondent.
[b] The Public Service Commission and/or the Employment And Labour Relations Court are the correct forums for ventilation of such an issue under Section 77 of the County Governments Act, Cap 265 and Section 12 of the Employment and Labour Relations Court Act, Cap 8E of the Laws of Kenya.
[3] In the same vein, 1 st and 2 nd respondents filed a Notice of Preliminary Objection dated 16 th September 2025, contending that:
[a] By dint of the provisions of Section 77(l) of the County Governments Act, 2012 and Regulations 4 of the Public Service Commission (County Appeals Procedures) Regulations, 2022, this Court lacks the requisite jurisdiction to entertain, hear or determine the application and the Petition given that the subject matter relates to the secondment, deployment, employment and engagement of the interested party; which is a matter for the Employment and Labour Relations Court and or the Public Service Commission.
[b] The petitioners lack the locus standi to raise, lodge or prosecute the Petition.
[4] Accordingly, the 1 st , 2 nd and 4 th respondents as well as the interested party prayed that the Petition herein be dismissed with costs.
[5] The preliminary objections were canvassed by way of written submissions pursuant to the directions given on 18 th September 2025. In their submissions, the 1 st and 2 nd respondents contended that the Petition offends the provisions of Section 77 of the County Governments Act in so far as the issues pleaded in therein relate to and are about the secondment and purported appointment of the interested party as the Acting Clerk of the Homa Bay County Assembly.
[6] The Section aforesaid provides that any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission. It was therefore the contention of the 1 st and 2 nd respondents that the Commission has the mandate to entertain appeals on any decision relating to employment of a person in the County Government set up, including a decision in respect of recruitment, selection or appointment.
[7] On the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696, The Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (1989) KLR 1 and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLR, the 1 st and 2 nd respondent submitted that in the absence jurisdiction the Court has no basis for entertaining either the Petition or the interlocutory application filed therewith. They also relied on the Public Appointments (Parliamentary Approval) Act, 2011, an Act of the Parliament that provides for procedures for parliamentary approval of constitutional and statutory appointments and for connected purposes.
[8] The 1 st and 2 nd respondents further submitted that petitioners were enjoined to first raise the matter of the secondment and purported appointment of the interested party with the Homa Bay County Public Service Board; and require the Board to undertake investigation on the matter and make a decision on the same. That it was only after exhausting that avenue that they would be justified in seeking the intervention of the Court. They also pointed out that, even then, the court with jurisdiction in such matters is not the High Court but the Employment and Labour Relations Court, in accord with Section 12 of the Employment and Labour Relations Act, (Cap 8E).
[9] It was therefore the contention of the 1 st and 2 nd respondents that the Petition offends the doctrine of exhaustion. They relied on the following authorities to buttress their arguments:
[a] Nyaoga v Chairman Kisii County Assembly & 3 others (Civil Appeal E034 of 2023) [2023] KECA 1540 (KLR);
[b] Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another [2015] eKLR;
[c] Geoffrev Muthinja & another v Samuel Muguna Henry & 1756 Others [2015] eKLR;
[d] William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others: Muslims for Human Rights & 2 Others (interested parties) [2020] eKLR;
[10] Accordingly, the petitioners prayed for the striking out of the Petition with costs.
[11] The 4 th respondent and the interested party relied on their written submissions dated 17 th November 2025. They similarly argued that since the petitioners herein are seeking to challenge the secondment and appointment of the interested party to his current job as the Acting Clerk of the County Assembly of Homa Bay, they ought to have filed their complaint before the Public Service Commission pursuant to Section 77 of the County Governments Act. They further submitted that, where it is contemplated that an employee’s appointment, promotion, deployment, secondment, rights or obligations are in dispute, such as the interested party herein, the correct court to parade such a challenge for determination is the Employment and Labour Relations Court; which is a specialized court created in the Constitution to deal with such issues.
[12] Lastly, the 4 th respondent and the interested party pointed out that, since the petitioners are members of the County Assembly of Homa Bay, they ought to have referred their complaint to the Human Resource Committee of the Assembly for investigation and action before escalating it elsewhere, as provided for in the Standing Orders of the Assembly. They therefore contended that the failure by the petitioners to exhaust the dispute resolution forums provided for in the Standing Orders is a violation of the exhaustion principle; and therefore, on that ground alone, the Petition should be dismissed with costs.
[13] As was pointed out in Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd:
“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”
[14] Likewise, in Oraro vs. Mbaja (supra) the principle was restated thus by Hon. Ojwang, J. (as he then was):
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[15] With the foregoing in mind, I have given careful consideration to the Preliminary Objection raised by the respondents and the grounds relied on by them in seeking the striking out of the Petition. I have similarly taken into consideration the written submissions filed by the parties. The issues for determination, as well summarized by the parties, are:
[a] Whether the Court has jurisdiction to entertain the present Petition.
[b] Whether the petition offends the doctrines of constitutional avoidance and exhaustion.
[16] Clearly, the issue of jurisdiction is key to the resolution of the other points of objection raised by the respondents. It would be inconsequential for a court of law to proceed to hear and determine a matter if it lacks the jurisdiction so to do. This was aptly expressed by the Court of Appeal in the Owners of Motor Vessel "Lilian s" vs. Caltex Oil (K) Ltd [1989] KLR 1, thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."
[17] And there is no gainsaying that the question of jurisdiction is one that must be taken in limine . In above case the Court (per Nyarangi, JA ) added that :
"...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."
[18] In the work, Major Law Lexicon, Volume 4, jurisdiction is aptly defined thus:
"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Chapter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of the actions or the matters of which the particular court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics..."
[19] Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[20] The facts relied on by the petitioners were pleaded at paragraphs 34 to 54 show that the subject matter relates to secondment and appointment of the 3 rd respondent. The reliefs sought further concretizes the petitioners’ grievance in so far as they seek revocation of the impugned appointment. Accordingly, the single issue that presents itself for determination in this Ruling is the question whether a grievance in connection with the recruitment process is a matter that can be ventilated before the High Court.
[21] The pertinent provisions are Articles 162(2), and (3), 165(3), of the Constitution as well as Section 12 of the Employment and Labour Relations Court Act. Article 165(3) states that:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[22] Sub-Article (5) of Article 165 the Constitution is however explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[23] On the other hand, Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[24] Section 12 of the Employment and Labour Relations Act stipulates that:
"The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations..."
[25] In the premises, it is manifest that this suit ought to have been filed before the Employment and Labour Relations Court. I find succor in the case of Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, in which a question arose as to whether the Employment and Labour Relations Court was properly seized of a dispute arising from a recruitment process; and it was held (by Hon. B. Ongaya, J. as he then was) that:
"As relates to jurisdiction by subject matter, Article 162(2)(a) of the Constitution and Section 12(1) of the Act are elaborate that jurisdiction attaches to this court with respect to disputes relating to employment and labour relations. In the instant case, the dispute is about a recruitment process undertaken by the respondent. The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of that subject matter."
[26] Similarly, in Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & Another [2015] eKLR, the Employment and Labour Relations Court ( Hon. Mbaru, J.) held that:
"...The orders sought relate to the Claimant seeking to stop the recruitment of 53 county education to replace the current Directors of County Education. Thus, the issues in dispute and the orders sought relate to employment and labour relations, matters directly under the jurisdiction of this court. Matters of recruitment of employees, termination of employment through whatever means - constructive dismissal/termination as well - fall under the purview of this court's jurisdiction."
[27] The petitioner urged the Court to find that this Petition raises issues fit for constitutional interpretation for which only the High Court has jurisdiction. That argument is clearly untenable in the light of the provisions of Articles 162 of the Constitution. Indeed, in Prof. Daniel N. Mugendi v Kenyatta University & 3 others [2013] eKLR, it was held that the Employment and Labour Relations Court has the jurisdiction to interpret the Constitution. The Court of Appeal expressed the following viewpoint in the matter:
"...we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects."
[28] In Okiya Omtatah v Joseph Kinyua & another [2018] eKLR, a case handled by the Employment and Labour Relations Court ( Hon. Abuodha, J.) in which the issue arose as to whether that court had the jurisdiction to entertain a dispute involving the interpretation of the Constitution, and it was held that:
"The court while would like to avoid the never ending debate on the scope of jurisdiction of this court over constitutional issues would like to state that it is erroneous to apply the test of the existence of employer-employee relationship as the main criteria for deciding whether a constitutional question arising in that context can be determined by the court. Third parties towards whom there may be no employer-employee relationship may jointly or indirectly take decisions that affect employer-employee relationship. This makes them amenable to the jurisdiction of the court. The preamble to the ELRC Act ...is wide enough and cannot by any manner of interpretation be understood to confine the jurisdiction of the court to only situations where there is in existence an employer-employee relationship. That would be too narrow interpretation."
[29] I agree entirely with the decision. In the result, I would uphold the respondents' Preliminary Objection on jurisdiction and find that this is a matter that ought to have been filed before the Employment and Labour Relations Court; and therefore that this Court has no jurisdiction to entertain it. That being my view, I must down my tools as no useful purpose would be served by considering the other issues raised by the respondents under the broad head of whether the Petition offends the doctrine of exhaustion.
[30] It is now trite that a suit filed in a court without jurisdiction cannot be transferred to another court. The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
“[153] …the purposive reading and interpretation of Article 162 together with Article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under Article 162(2) supra , must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[31] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[32] In view of the above, the respondents’ and interested party's Preliminary Objections dated 15 th September 2025 and 16 th September 2025, respectively, are hereby upheld with the result that the applicant’s Petition dated 20 th August 2025 and the Notice of Motion filed therewith are hereby struck out for want of jurisdiction.
[33] The last question to pose is, what order ought to issue on costs? It is now settled that costs follow the event and are at the discretion of the court. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, [2014] eKLR the Supreme Court issued guidelines that a court must consider when exercising its discretion to either award or deny costs as follows:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
[34] Hence, while the law gives the court discretion over the costs associated with all suits, including the power to determine who should bear those costs and to what extent, the Court must evaluate the particular circumstances of this case and determine whether they justify awarding costs to the successful parties. The Supreme Court in Jasbir Singh Rai (supra) further stated that the legal principle that costs follow the event is not absolute. The court held:
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[35] In the circumstances hereof, it is only fair that each party bears their own costs of the Petition, this being a public interest litigation.
It is so ordered.