1. The petitioner filed a petition dated 6th October 2025, in which she alleged an unlawful, unreasonable, and discriminatory decision by the Respondents to bar her from participating in an interview for the position of Member of the National Land Commission (NLC). The Petitioner contended that this action violated her fundamental rights under Articles 27, 28, 41, 47 and 50 of the Constitution and breached the doctrine of legitimate expectation and fair administrative action. The Petitioner sought for the following Orders-
a) A declaration that the 1st Respondent’s decision of barring the Petitioner from participating in the scheduled interview for member of the National Land Commission is unconstitutional, illegal and procedurally unfair and violates the Petitioner's right to fair labour practices under Article 41 of the Constitution, a fair administrative action under Article 47 and the presumption of innocence under Article 50 of the Constitution;
b) A declaration that upon the Petitioner being shortlisted by the 1st Respondent created a legitimate expectation to be interviewed and the Respondent's failure to honour the expectation constitutes a breach of the principles of fairness, transparency and accountability as entrenched in Article 10 of the Constitution;
c) An order of CERTIORARI to quash the decision of the Respondents from barring the Petitioner from participating in the recruitment process;
d) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue the Petitioner with any clearance subject to noting the pending cases for as long as the cases remain in court;
e) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue necessary clearances to applicants of the relevant clearances noting pending cases for purposes of job applications;
f) Damages for violation of the Petitioner's rights and psychological torture;
g) Costs of the suit;
h) Any other further relief that this Honourable court shall deem fit to grant.
2. The petitioner, in support of the petition, filed her affidavit, sworn on the 6TH October 2025. The petitioner produced her evidence as follows- ‘I am a member of the Institution of Surveyors of Kenya since 17th June 1999 and a member in good standing with a current practicing license of 2025; Annexed and marked as a bundle SLM-2 is my membership certificate and my current practicing license I previously served as a Director Valuation and Land Taxation at the National Land Commission from 1st November 2013 till 1st November 2023; Annexed and marked as SLM-3 is the letter of secondment. During my tenure as a Director I was charged in two cases ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS which cases are still pending; Annexed and marked as SLM-4 (a) and (b) are the charge sheets in the two cases During the pendency of the said cases I also had an employment dispute with my former employer which was determined in our favour; Annexed and marked as SLM-5 is a copy of the judgment of the Court of Appeal Both cases in paragraph 4 (above) have not concluded almost 7 years from inception; In-fact ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; Annexed and marked as SLM-6 is a copy of the Ruling. On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; Annexed and marked as SLM-7 is a copу of the advertisement. I sought for clearance/no objection letter from the 2nd Respondent by filling the self-declaration form whereby I disclosed my pending suits in court. I also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; Annexed and marked as SLM-8(a) and (b) are the clearances. On 12 September 2025 I submitted my application for member of the National Land Commission; Annexed and marked as SLM-9 is a copy of my application. On 24 September 2025 I was shortlisted for the position of member and was to be interviewed on 6 October 2025 at 9.30 AM; Annexed and marked as SLM-10 is a copy of the shortlist. On 6 October 2025 when I appeared for the interview at 9.30 AM I was informed verbally by the Chairperson of the 1st Respondent that I cannot be interviewed because my clearance from EACC was not good and neither was my good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission are set to lapse on 14th October 2025; The said action by the Respondents are not only in violation of my rights to a fair trial, the right to earn a living and the presumption of innocence but the same is also contrary to the doctrine of legitimate expectation; I have been advised by my Advocates on record which advise I verily believe to be true that my rights have been infringed more specifically in the following ways; i. At the point of shortlisting it is presumed that the 1st Respondent had done a complete background check of all the applicants and by inviting me to the interview then a legitimate expectation arose that I would be interviewed. This is the position upheld by our courts in its decision such as the case of Abdi & 2 others v Speaker, County Assembly of Garissa & another (Constitutional Petition E013 of 2023) [2024] КЕНC 4577 (KLR) (3 May 2024) (Judgment); Annexed and marked as SLM-11 is a copy of the judgment 20 ii. iii. I have never been convicted of any criminal offence. I have for the last 7 years been one of the accused person in ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS both matters which are still pending in court; ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; iv. I have to enjoy equal protection of the law more specifically because I have not been convicted of any criminal offence and I enjoy the presumption of innocence until proven guilty. v. I also have a right to work and earn a living. I am a professional with many years of experience and that is why I was shortlisted despite the many applications which were received; I verily believe that the law has to provide equality, fairness, prohibit discrimination, provide certainty and consistency. It defeats the law to have candidates seeking elective positions with pending criminal cases being cleared by the 2nd and 3rd Respondents while candidates in the same position seeking employment opportunities being denied clearance; The 1st Respondent is an ad-hoc committee whose term expires upon submission of named to the appointing authority and if the Court does not intervene in good time it would be impossible to implement any order of this Court if the committee is dissolved.’
Response
3. The 2nd respondent opposed the petition vide grounds of opposition dated 9th October 2025 as follows- EACC is established pursuant to Article 79 of the Constitution for purposes of ensuring compliance with and enforcement of the provisions of Chapter Six of the Constitution. Pursuant to Article 80 of the Constitution, Parliament enacted the Ethics and Anti-Corruption Act, 2011(EACC Act) and the Leadership and Integrity Act, 2012(LIA) for the effective administration of Chapter Six of the Constitution. EACC is mandated to conduct investigations and recommend the prosecution of acts of corruption, bribery, economic crimes or violations of Chapter Six and codes of ethics to the Director of Public Prosecutions pursuant to Section 11(1) (d) of the EACC Act, and Section 43 of the LIA. EACC has the primary responsibility of overseeing and enforcing the implementation of LIA. Nonetheless, Section 4 of LIA requires state organs and public entities to assist EACC whilst undertaking its mandate of ensuring compliance with the enforcement of Chapter Six and to carry out such functions and exercise such powers as may be necessary. On integrity verification process- Section 12A of LIA requires any person desirous to be appointed to a State Office, including membership to a Chapter Fifteen Commission, such as the National Land Commission, to submit to the EACC the requisite Self-Declaration Form. The law aforesaid requires persons seeking appointive posts to demonstrate that they meet the moral and ethical requirements by answering - under oath - the moral and ethical questions contained in a Self-Declaration Form. The completion of the Self Declaration Form does not in itself constitute a no objection, clearance, or confirmation that a person has observed and maintained the stipulated moral and ethical standards, as the information contained in the form must be verified. State organs and public entities rely on EACC to verify the contents of the Self Declaration Form based on the understanding that the eligibility, qualifications and disqualification of persons seeking appointive posts are domiciled in the mandates of various agencies and other state actors/entities. EACC determines whether the constitutional and statutory integrity threshold has been met by candidates seeking appointive posts and forwards an integrity verification report to the respective state body/organ/agency/entity. The purpose of the said report is to guide the state body in the discharge of its mandate under statute and the Constitution indicating whether a candidate has or has not met the constitutional and statutory integrity threshold, such as, if among others they; Have been removed from office by way of Impeachment (ii) Have been Charged (iii) Have been recommended for prosecution (iv) Have been Convicted (v) Have falsified records. State bodies/organs/agencies/entities are under Article 259(11) of the Constitution and Section 4(3) & (4) LIA to act in accordance with the integrity verification report by not shortlisting candidates for state office who have not met the constitutional and statutory integrity threshold. State bodies/organs/agencies/entities are bound by Article 10 of the Constitution on national values and principles of governance to ensure that candidates seeking appointive posts are people of integrity and meet the requirements of Chapter Six of the Constitution. Moral and ethical standard - The threshold -The Constitution does not envisage conviction as the sole applicable criteria for eligibility for persons seeking appointment to a state office. The provisions of Article 73 of the Constitution and the provisions of LIA that outlining the requirements for suitability of a person seeking to be appointed into state office, is stipulated in broad terms ranging from honesty to not committing criminal offences. As such; (i) A person may be morally and ethically unfit but neither charged with a criminal offence nor convicted. (ii) (iii) Gross violation of the Constitution or any other law, abuse of office, or gross misconduct form a basis for removal from state office. However, the evidence may not meet the threshold of criminal prosecution. Indeed, under the Constitution, criminal conviction is not a ground for removal from state office. The Constitution requires a state officer to behave whether in public or private life, in a manner that does not demean the office the officer holds. Action that may demean an office may not necessarily be criminal in nature. Chapter Six of the Constitution places a very high standard of integrity on persons seeking state office. Candidates must be demonstrably incorruptible, and beyond reproach, as the authority assigned to them is a public trust to be exercised in a manner that promotes the purposes and objects of the Constitution. Chapter Six of the Constitution sets out the criteria for entry into public governance institutions. Article 73(2) prescribes that state officers be selected based on personal integrity, competence and suitability. They must be objective and impartial in their decision-making, serve selflessly based solely on public interest demonstrated by honesty in the execution of public duties, and be accountable to the public for decisions and actions. 17.The eligibility and qualification requirement seeks to address the threat of abuse of delegated authority by persons seeking office ex-ante. This is a safeguard, a means of insulating the public from entrusting persons with no demonstrable constitutional values or are proven abusers of authority to state offices. 18. The rationale for the above is that state or public officers occupy positions of trust and carry a solemn burden - that of making decisions that affect the public, are entrusted with substantial public resources, run critical end economic programs and are looked upon to implement the law. Consequently, the limitation of right to seek appointment to a state office is intended to serve greater public good by minimizing the risk of bad governance. Integrity - as a prerequisite for ascension to state office - permeates the entire Constitution from Article 10, Chapter Six, and, Chapter 13 on Values and Principles of Public Service. EACC seeks the intervention of this Honourable Court as the ultimate guardian of the Constitution to give a purposive and progressive interpretation of the Constitution. The material made available before this Honourable Court by the Applicant does not demonstrate a prima facie case, or raise an arguable case to warrant the granting of the conservatory orders sought; therefore, a balance of convenience needs no consideration. The Applicant has not met the threshold for grant of conservatory orders.
4. The 1st, 3rd and 4th respondents entered appearance through the State Law and raised a Notice of preliminary objection dated 9th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
5. The petition was canvassed by way of written submissions. All parties filed.
DETERMINATION
Issues for determination
6. The petitioner raised the following issues for determination in her petition
a. Whether this Honorable court has requisite jurisdiction to hear and determine this petition;
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution;
c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position;
d. Whether the conduct of the Respondents amounted to unfair discrimination and violation of the Petitioner’s right to fair administrative action and fair labour practices;
e. Whether the Petitioner is entitled to the reliefs sought in the Petition.
7. The 2nd Respondent identifies the following issues for determination:
i. Whether the Petitioner has established a case to warrant the Court to issue orders of Certiorari and Mandamus as against the 2nd Respondent as prayed.
ii. Whether the Petitioner is entitled to damages for violation of rights and psychological torture
8. The 1st, 3rd and 4th Respondents submitted that it compressed the 5 issues raised by the petitioner into 2 issues -
a. Whether this Honourable court has requisite jurisdiction to hear and determine this petition;
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution to entitle the Petitioner to the reliefs sought in the Petition.
9. The court found the parties placed the following issues for it to determine in the petition –
a. Whether this Honorable court has the requisite jurisdiction to hear and determine this petition; and if in the positive-
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution;
c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position;
d. Whether the Petitioner is entitled to the reliefs sought in the Petition.
Whether this Honourable court has the requisite jurisdiction to hear and determine this petition;
10. This issue arose from the Notice of Preliminary Objection by the 1st, 3rd and 4th respondents dated 9Th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
11. The 1st, 3rd, and 4th respondents, in support of the objection, submitted as follows: This court lacks the necessary jurisdiction to hear and determine this matter because the cause of action arises from a constitutionally sanctioned process for selecting Commissioners of independent Constitutional Commissions. The petitioner is challenging the decision of the Selection Panel regarding the recruitment of Commissioners to the National Land Commission under the first schedule of the National Land Commission Act. As the petitioner submitted, Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine disputes related to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee. Section 12 sets out the Court’s jurisdiction: 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, the provisions of this Act, or any other written law extending jurisdiction to the Court relating to employment and labour relations, including disputes concerning or arising from employment between an employer and an employee. In this case, there is no employer/employee relationship between the petitioner and the selection panel, and further, that commissioners are not employees of the commission but rather constitute the commission itself; hence, a special provision was made for their appointment. Consequently, matters related to recruitment, terms of service, and dismissal of commissioners fall squarely within the jurisdiction of the High Court and not the Employment and Labour Relations Court. In this regard, the court's attention is drawn to the binding decision of the Court of Appeal in Attorney General & others v Okiya Omtatah Okoiti & 14 others [2020] eKLR. This case is distinguishable from the cases cited by the petitioner to support her claims, as those cases do not strictly concern the recruitment of commissioners. Secondly, the petitioner appears to narrow the facts of this case by merely alleging that the dispute concerned the constitutionality of the composition and functioning of the selection panel, rather than an individual recruitment grievance. However, this is not true, as the case also challenged the selection and nomination of certain individuals for vetting and appointment as commissioners, which the Court of Appeal stated this court lacked the jurisdiction to adjudicate, just as in this case. The Court of Appeal called for the dismissal of the petition with costs.
12. Conversely, the petitioner took the position that the court had jurisdiction and submitted as follows- Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine all disputes relating to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee, or the recruitment process into public service; 162. System of courts (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) Employment and labour relations; 12. Jurisdiction of the Court (1)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 including, (a) disputes relating to or arising out of employment between an employer and an employee; An employee within the meaning of section 2 of the ELRC Act is ‘a person employed for wages or a salary and includes an apprentice and indentured learner’. This encompasses members of independent commission whose benefits are drawn from the Consolidated Fund under Article 250(7) of the Constitution, whose remuneration and benefits are paid through a consolidated fund. Consequently, disputes relating to the recruitment, vetting, or appointment of such members fall within the sphere of employment and labour relations. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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… 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.” In the present case, the dispute arises from the Petitioner’s exclusion from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process into public office, which squarely falls within the sphere of employment and labour relations contemplated under Article 162(2)(a) of the Constitution. Courts have consistently affirmed that disputes arising from recruitment processes fall within the jurisdiction of the Employment and Labour Relations Court. In Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, the Court held that recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the Court’s jurisdiction. Similarly, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, the Court of Appeal affirmed that the Employment and Labour Relations Court has jurisdiction to determine constitutional issues that arise incidentally from employment and labour relations disputes. Recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the jurisdiction of this Honourable Court. Section 5(3) of the Employment Act prohibits discrimination in employment and specifically extends protection to the recruitment and selection process, thereby affirming that recruitment forms part of employment relationships governed by labour law. It stipulates as follows; 5. Discrimination in employment (3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee— (a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status; (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. This position has also been affirmed by the courts and we place reliance on the case of Mwau v Inspector General, National Police Service & 3 others; National Security Council & another (Interested Parties) [2025] where Justice Wasilwa nullified the planned recruitment of 10,000 police constables. The Court found that the National Police Service Commission acted unconstitutionally by usurping powers reserved for the Inspector General of Police (IG). Justice Wasilwa ruled that under Article 238(2)(d) of the Constitution, recruitment into national security organs must be conducted by the organ itself that is the National Police Service or the Inspector General of the police and not by an external body like the National Police Service Commission. While the Court of Appeal in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR observed that the appointment of commissioners may in certain contexts be a sui generis constitutional process, that decision must be understood within its specific factual context. The dispute in that case concerned the constitutionality of the composition and functioning of the selection panel rather than an individual recruitment grievance. By contrast, the present Petition arises directly from the Petitioner’s exclusion from an ongoing recruitment process in which she was a participant after being shortlisted. The predominant issue is therefore a recruitment dispute within the public service. Accordingly, the Petitioner submits that this Honourable Court has the requisite jurisdiction to hear and determine the Petition pursuant to Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
13. The 2nd respondent did not submit on the question of jurisdiction.
Decision on the jurisdiction of the court
14. In the present case, the dispute arises from the decision of the 1st respondent to exclude the Petitioner from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process of members of the National Land Commission. The facts are not in dispute and are summarized to be that - On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; The Petitioner sought for clearance/no objection letter from the 2nd Respondent by completing the self-declaration form whereby she disclosed her pending suits in court. She also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; On the 12 September 2025 the Petitioner/Applicant submitted her application for member of the National Land Commission and on 24 September 2025 was shortlisted for the position of member and was scheduled to be interviewed on 6 October 2025 at 9.30 AM; On 6 October 2025 when the Petitioner/Applicant appeared for the interview at 9.30 AM she was informed verbally by the chairperson of the 1st Respondent that she cannot be interviewed because her clearance from EACC was not good and neither was her good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission were set to lapse on 14th October 2025.
15. The 1st, 3rd and 4th Respondent raised a Notice of Preliminary Objection dated 9th day of October 2025 as follows- The 1st, 3rd and 4th respondents herein will at the hearing hereof raise a preliminary objection on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
16. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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… 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.”
17. The National Land Commission is created under article 248 (2)(b) of the Constitution. The composition of the commission is as stated in article 250 of the Constitution, which states-‘250. Composition, appointment and terms of office
(1)Each commission shall consist of at least three, but not more than nine, members.(2)The chairperson and each member of a commission, and the holder of an independent office, shall be—
(a)identified and recommended for appointment in a manner prescribed by national legislation;
(b)approved by the National Assembly; and(c)appointed by the President.’’
18. The enabling legislation is the National Land Commission Act. Section 7 of the Act provides for the membership of the commission as follows: ' 7. Membership of the Commission
(1)The Commission shall consist of a Chairperson and eight other members appointed in accordance with the Constitution and the provisions of this Act.
(2)The Chairperson and members of the Commission shall be appointed in acco
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a) A declaration that the 1st Respondent’s decision of barring the Petitioner from participating in the scheduled interview for member of the National Land Commission is unconstitutional, illegal and procedurally unfair and violates the Petitioner's right to fair labour practices under Article 41 of the Constitution, a fair administrative action under Article 47 and the presumption of innocence under Article 50 of the Constitution;
b) A declaration that upon the Petitioner being shortlisted by the 1st Respondent created a legitimate expectation to be interviewed and the Respondent's failure to honour the expectation constitutes a breach of the principles of fairness, transparency and accountability as entrenched in Article 10 of the Constitution;
c) An order of CERTIORARI to quash the decision of the Respondents from barring the Petitioner from participating in the recruitment process;
d) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue the Petitioner with any clearance subject to noting the pending cases for as long as the cases remain in court;
e) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue necessary clearances to applicants of the relevant clearances noting pending cases for purposes of job applications;
f) Damages for violation of the Petitioner's rights and psychological torture;
g) Costs of the suit;
h) Any other further relief that this Honourable court shall deem fit to grant.
2. The petitioner, in support of the petition, filed her affidavit, sworn on the 6TH October 2025. The petitioner produced her evidence as follows- ‘I am a member of the Institution of Surveyors of Kenya since 17th June 1999 and a member in good standing with a current practicing license of 2025; Annexed and marked as a bundle SLM-2 is my membership certificate and my current practicing license I previously served as a Director Valuation and Land Taxation at the National Land Commission from 1st November 2013 till 1st November 2023; Annexed and marked as SLM-3 is the letter of secondment. During my tenure as a Director I was charged in two cases ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS which cases are still pending; Annexed and marked as SLM-4 (a) and (b) are the charge sheets in the two cases During the pendency of the said cases I also had an employment dispute with my former employer which was determined in our favour; Annexed and marked as SLM-5 is a copy of the judgment of the Court of Appeal Both cases in paragraph 4 (above) have not concluded almost 7 years from inception; In-fact ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; Annexed and marked as SLM-6 is a copy of the Ruling. On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; Annexed and marked as SLM-7 is a copу of the advertisement. I sought for clearance/no objection letter from the 2nd Respondent by filling the self-declaration form whereby I disclosed my pending suits in court. I also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; Annexed and marked as SLM-8(a) and (b) are the clearances. On 12 September 2025 I submitted my application for member of the National Land Commission; Annexed and marked as SLM-9 is a copy of my application. On 24 September 2025 I was shortlisted for the position of member and was to be interviewed on 6 October 2025 at 9.30 AM; Annexed and marked as SLM-10 is a copy of the shortlist. On 6 October 2025 when I appeared for the interview at 9.30 AM I was informed verbally by the Chairperson of the 1st Respondent that I cannot be interviewed because my clearance from EACC was not good and neither was my good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission are set to lapse on 14th October 2025; The said action by the Respondents are not only in violation of my rights to a fair trial, the right to earn a living and the presumption of innocence but the same is also contrary to the doctrine of legitimate expectation; I have been advised by my Advocates on record which advise I verily believe to be true that my rights have been infringed more specifically in the following ways; i. At the point of shortlisting it is presumed that the 1st Respondent had done a complete background check of all the applicants and by inviting me to the interview then a legitimate expectation arose that I would be interviewed. This is the position upheld by our courts in its decision such as the case of Abdi & 2 others v Speaker, County Assembly of Garissa & another (Constitutional Petition E013 of 2023) [2024] КЕНC 4577 (KLR) (3 May 2024) (Judgment); Annexed and marked as SLM-11 is a copy of the judgment 20 ii. iii. I have never been convicted of any criminal offence. I have for the last 7 years been one of the accused person in ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS both matters which are still pending in court; ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; iv. I have to enjoy equal protection of the law more specifically because I have not been convicted of any criminal offence and I enjoy the presumption of innocence until proven guilty. v. I also have a right to work and earn a living. I am a professional with many years of experience and that is why I was shortlisted despite the many applications which were received; I verily believe that the law has to provide equality, fairness, prohibit discrimination, provide certainty and consistency. It defeats the law to have candidates seeking elective positions with pending criminal cases being cleared by the 2nd and 3rd Respondents while candidates in the same position seeking employment opportunities being denied clearance; The 1st Respondent is an ad-hoc committee whose term expires upon submission of named to the appointing authority and if the Court does not intervene in good time it would be impossible to implement any order of this Court if the committee is dissolved.’
Response
3. The 2nd respondent opposed the petition vide grounds of opposition dated 9th October 2025 as follows- EACC is established pursuant to Article 79 of the Constitution for purposes of ensuring compliance with and enforcement of the provisions of Chapter Six of the Constitution. Pursuant to Article 80 of the Constitution, Parliament enacted the Ethics and Anti-Corruption Act, 2011(EACC Act) and the Leadership and Integrity Act, 2012(LIA) for the effective administration of Chapter Six of the Constitution. EACC is mandated to conduct investigations and recommend the prosecution of acts of corruption, bribery, economic crimes or violations of Chapter Six and codes of ethics to the Director of Public Prosecutions pursuant to Section 11(1) (d) of the EACC Act, and Section 43 of the LIA. EACC has the primary responsibility of overseeing and enforcing the implementation of LIA. Nonetheless, Section 4 of LIA requires state organs and public entities to assist EACC whilst undertaking its mandate of ensuring compliance with the enforcement of Chapter Six and to carry out such functions and exercise such powers as may be necessary. On integrity verification process- Section 12A of LIA requires any person desirous to be appointed to a State Office, including membership to a Chapter Fifteen Commission, such as the National Land Commission, to submit to the EACC the requisite Self-Declaration Form. The law aforesaid requires persons seeking appointive posts to demonstrate that they meet the moral and ethical requirements by answering - under oath - the moral and ethical questions contained in a Self-Declaration Form. The completion of the Self Declaration Form does not in itself constitute a no objection, clearance, or confirmation that a person has observed and maintained the stipulated moral and ethical standards, as the information contained in the form must be verified. State organs and public entities rely on EACC to verify the contents of the Self Declaration Form based on the understanding that the eligibility, qualifications and disqualification of persons seeking appointive posts are domiciled in the mandates of various agencies and other state actors/entities. EACC determines whether the constitutional and statutory integrity threshold has been met by candidates seeking appointive posts and forwards an integrity verification report to the respective state body/organ/agency/entity. The purpose of the said report is to guide the state body in the discharge of its mandate under statute and the Constitution indicating whether a candidate has or has not met the constitutional and statutory integrity threshold, such as, if among others they; Have been removed from office by way of Impeachment (ii) Have been Charged (iii) Have been recommended for prosecution (iv) Have been Convicted (v) Have falsified records. State bodies/organs/agencies/entities are under Article 259(11) of the Constitution and Section 4(3) & (4) LIA to act in accordance with the integrity verification report by not shortlisting candidates for state office who have not met the constitutional and statutory integrity threshold. State bodies/organs/agencies/entities are bound by Article 10 of the Constitution on national values and principles of governance to ensure that candidates seeking appointive posts are people of integrity and meet the requirements of Chapter Six of the Constitution. Moral and ethical standard - The threshold -The Constitution does not envisage conviction as the sole applicable criteria for eligibility for persons seeking appointment to a state office. The provisions of Article 73 of the Constitution and the provisions of LIA that outlining the requirements for suitability of a person seeking to be appointed into state office, is stipulated in broad terms ranging from honesty to not committing criminal offences. As such; (i) A person may be morally and ethically unfit but neither charged with a criminal offence nor convicted. (ii) (iii) Gross violation of the Constitution or any other law, abuse of office, or gross misconduct form a basis for removal from state office. However, the evidence may not meet the threshold of criminal prosecution. Indeed, under the Constitution, criminal conviction is not a ground for removal from state office. The Constitution requires a state officer to behave whether in public or private life, in a manner that does not demean the office the officer holds. Action that may demean an office may not necessarily be criminal in nature. Chapter Six of the Constitution places a very high standard of integrity on persons seeking state office. Candidates must be demonstrably incorruptible, and beyond reproach, as the authority assigned to them is a public trust to be exercised in a manner that promotes the purposes and objects of the Constitution. Chapter Six of the Constitution sets out the criteria for entry into public governance institutions. Article 73(2) prescribes that state officers be selected based on personal integrity, competence and suitability. They must be objective and impartial in their decision-making, serve selflessly based solely on public interest demonstrated by honesty in the execution of public duties, and be accountable to the public for decisions and actions. 17.The eligibility and qualification requirement seeks to address the threat of abuse of delegated authority by persons seeking office ex-ante. This is a safeguard, a means of insulating the public from entrusting persons with no demonstrable constitutional values or are proven abusers of authority to state offices. 18. The rationale for the above is that state or public officers occupy positions of trust and carry a solemn burden - that of making decisions that affect the public, are entrusted with substantial public resources, run critical end economic programs and are looked upon to implement the law. Consequently, the limitation of right to seek appointment to a state office is intended to serve greater public good by minimizing the risk of bad governance. Integrity - as a prerequisite for ascension to state office - permeates the entire Constitution from Article 10, Chapter Six, and, Chapter 13 on Values and Principles of Public Service. EACC seeks the intervention of this Honourable Court as the ultimate guardian of the Constitution to give a purposive and progressive interpretation of the Constitution. The material made available before this Honourable Court by the Applicant does not demonstrate a prima facie case, or raise an arguable case to warrant the granting of the conservatory orders sought; therefore, a balance of convenience needs no consideration. The Applicant has not met the threshold for grant of conservatory orders.
4. The 1st, 3rd and 4th respondents entered appearance through the State Law and raised a Notice of preliminary objection dated 9th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
5. The petition was canvassed by way of written submissions. All parties filed.
DETERMINATION
Issues for determination
6. The petitioner raised the following issues for determination in her petition
a. Whether this Honorable court has requisite jurisdiction to hear and determine this petition;
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution;
c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position;
d. Whether the conduct of the Respondents amounted to unfair discrimination and violation of the Petitioner’s right to fair administrative action and fair labour practices;
e. Whether the Petitioner is entitled to the reliefs sought in the Petition.
7. The 2nd Respondent identifies the following issues for determination:
i. Whether the Petitioner has established a case to warrant the Court to issue orders of Certiorari and Mandamus as against the 2nd Respondent as prayed.
ii. Whether the Petitioner is entitled to damages for violation of rights and psychological torture
8. The 1st, 3rd and 4th Respondents submitted that it compressed the 5 issues raised by the petitioner into 2 issues -
a. Whether this Honourable court has requisite jurisdiction to hear and determine this petition;
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution to entitle the Petitioner to the reliefs sought in the Petition.
9. The court found the parties placed the following issues for it to determine in the petition –
a. Whether this Honorable court has the requisite jurisdiction to hear and determine this petition; and if in the positive-
b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution;
c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position;
d. Whether the Petitioner is entitled to the reliefs sought in the Petition.
Whether this Honourable court has the requisite jurisdiction to hear and determine this petition;
10. This issue arose from the Notice of Preliminary Objection by the 1st, 3rd and 4th respondents dated 9Th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
11. The 1st, 3rd, and 4th respondents, in support of the objection, submitted as follows: This court lacks the necessary jurisdiction to hear and determine this matter because the cause of action arises from a constitutionally sanctioned process for selecting Commissioners of independent Constitutional Commissions. The petitioner is challenging the decision of the Selection Panel regarding the recruitment of Commissioners to the National Land Commission under the first schedule of the National Land Commission Act. As the petitioner submitted, Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine disputes related to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee. Section 12 sets out the Court’s jurisdiction: 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, the provisions of this Act, or any other written law extending jurisdiction to the Court relating to employment and labour relations, including disputes concerning or arising from employment between an employer and an employee. In this case, there is no employer/employee relationship between the petitioner and the selection panel, and further, that commissioners are not employees of the commission but rather constitute the commission itself; hence, a special provision was made for their appointment. Consequently, matters related to recruitment, terms of service, and dismissal of commissioners fall squarely within the jurisdiction of the High Court and not the Employment and Labour Relations Court. In this regard, the court's attention is drawn to the binding decision of the Court of Appeal in Attorney General & others v Okiya Omtatah Okoiti & 14 others [2020] eKLR. This case is distinguishable from the cases cited by the petitioner to support her claims, as those cases do not strictly concern the recruitment of commissioners. Secondly, the petitioner appears to narrow the facts of this case by merely alleging that the dispute concerned the constitutionality of the composition and functioning of the selection panel, rather than an individual recruitment grievance. However, this is not true, as the case also challenged the selection and nomination of certain individuals for vetting and appointment as commissioners, which the Court of Appeal stated this court lacked the jurisdiction to adjudicate, just as in this case. The Court of Appeal called for the dismissal of the petition with costs.
12. Conversely, the petitioner took the position that the court had jurisdiction and submitted as follows- Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine all disputes relating to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee, or the recruitment process into public service; 162. System of courts (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) Employment and labour relations; 12. Jurisdiction of the Court (1)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 including, (a) disputes relating to or arising out of employment between an employer and an employee; An employee within the meaning of section 2 of the ELRC Act is ‘a person employed for wages or a salary and includes an apprentice and indentured learner’. This encompasses members of independent commission whose benefits are drawn from the Consolidated Fund under Article 250(7) of the Constitution, whose remuneration and benefits are paid through a consolidated fund. Consequently, disputes relating to the recruitment, vetting, or appointment of such members fall within the sphere of employment and labour relations. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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… 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.” In the present case, the dispute arises from the Petitioner’s exclusion from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process into public office, which squarely falls within the sphere of employment and labour relations contemplated under Article 162(2)(a) of the Constitution. Courts have consistently affirmed that disputes arising from recruitment processes fall within the jurisdiction of the Employment and Labour Relations Court. In Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, the Court held that recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the Court’s jurisdiction. Similarly, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, the Court of Appeal affirmed that the Employment and Labour Relations Court has jurisdiction to determine constitutional issues that arise incidentally from employment and labour relations disputes. Recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the jurisdiction of this Honourable Court. Section 5(3) of the Employment Act prohibits discrimination in employment and specifically extends protection to the recruitment and selection process, thereby affirming that recruitment forms part of employment relationships governed by labour law. It stipulates as follows; 5. Discrimination in employment (3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee— (a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status; (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. This position has also been affirmed by the courts and we place reliance on the case of Mwau v Inspector General, National Police Service & 3 others; National Security Council & another (Interested Parties) [2025] where Justice Wasilwa nullified the planned recruitment of 10,000 police constables. The Court found that the National Police Service Commission acted unconstitutionally by usurping powers reserved for the Inspector General of Police (IG). Justice Wasilwa ruled that under Article 238(2)(d) of the Constitution, recruitment into national security organs must be conducted by the organ itself that is the National Police Service or the Inspector General of the police and not by an external body like the National Police Service Commission. While the Court of Appeal in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR observed that the appointment of commissioners may in certain contexts be a sui generis constitutional process, that decision must be understood within its specific factual context. The dispute in that case concerned the constitutionality of the composition and functioning of the selection panel rather than an individual recruitment grievance. By contrast, the present Petition arises directly from the Petitioner’s exclusion from an ongoing recruitment process in which she was a participant after being shortlisted. The predominant issue is therefore a recruitment dispute within the public service. Accordingly, the Petitioner submits that this Honourable Court has the requisite jurisdiction to hear and determine the Petition pursuant to Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
13. The 2nd respondent did not submit on the question of jurisdiction.
Decision on the jurisdiction of the court
14. In the present case, the dispute arises from the decision of the 1st respondent to exclude the Petitioner from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process of members of the National Land Commission. The facts are not in dispute and are summarized to be that - On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; The Petitioner sought for clearance/no objection letter from the 2nd Respondent by completing the self-declaration form whereby she disclosed her pending suits in court. She also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; On the 12 September 2025 the Petitioner/Applicant submitted her application for member of the National Land Commission and on 24 September 2025 was shortlisted for the position of member and was scheduled to be interviewed on 6 October 2025 at 9.30 AM; On 6 October 2025 when the Petitioner/Applicant appeared for the interview at 9.30 AM she was informed verbally by the chairperson of the 1st Respondent that she cannot be interviewed because her clearance from EACC was not good and neither was her good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission were set to lapse on 14th October 2025.
15. The 1st, 3rd and 4th Respondent raised a Notice of Preliminary Objection dated 9th day of October 2025 as follows- The 1st, 3rd and 4th respondents herein will at the hearing hereof raise a preliminary objection on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act.
16. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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… 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.”
17. The National Land Commission is created under article 248 (2)(b) of the Constitution. The composition of the commission is as stated in article 250 of the Constitution, which states-‘250. Composition, appointment and terms of office
(1)Each commission shall consist of at least three, but not more than nine, members.(2)The chairperson and each member of a commission, and the holder of an independent office, shall be—
(a)identified and recommended for appointment in a manner prescribed by national legislation;
(b)approved by the National Assembly; and(c)appointed by the President.’’
18. The enabling legislation is the National Land Commission Act. Section 7 of the Act provides for the membership of the commission as follows: ' 7. Membership of the Commission
(1)The Commission shall consist of a Chairperson and eight other members appointed in accordance with the Constitution and the provisions of this Act.
(2)The Chairperson and members of the Commission shall be appointed in acco
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