REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CIVIL APPLICATION NO. ______ OF 2026
IN THE MATTER OF AN APPLICATION FOR LEAVE
TO APPLY FOR AN ORDER OF MANDAMUS
EDWIN NJOROGE MAINA
……
APPLICANT
VS
DEPUTY COUNTY COMMISSIONER
……
1ST RESPONDENT
COUNTY COMMISSIONER & ANOTHER
……
2ND & 3RD RESPONDENTS
RULING
1. The Applicant filed Chamber Summons dated 12th March 2026, brought under Order 53 rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The Applicant seeks leave to commence judicial review proceedings in the nature of of mandamus compelling the Respondents to perform what he describes as their statutory duty.
2. The application is supported by the Applicant’s affidavit sworn on 12th March 2026. He states that he is a resident of Kamuingi Sub-Location and challenges the recruitment and appointment of an Assistant Chief II for Kamuingi Sub-Location. His complaint is that the successful candidate is a resident of the neighbouring Masaita Sub-Location, notwithstanding an alleged requirement that an applicant be a resident of Kamuingi Sub-Location.
3. The Applicant further states that protests were made to the relevant administrative officers and that residents forwarded a petition dated 20th May 2025 to the Principal Secretary, Ministry of Interior and National Administration, with copies to the relevant regional and county administrators. He ultimately seeks to compel the Respondents to revoke the appointment and re-advertise the post.
4. Although the application is presented as one for judicial review, jurisdiction is determined by the substance of the dispute and the nature of the relief sought, rather than by the procedural label placed upon the proceedings. The Court must therefore first satisfy itself that it has jurisdiction before considering whether the threshold for leave under Order 53 has been met.
5. Article 162(2)(a) of the Constitution requires Parliament to establish courts of Equal status of the High Court to hear and determine disputes relating to employment and labour relations. Pursuant to that provision, Parliament enacted the Employment and Labour Relations Court Act. Section 12 of that Act vests in the Employment and Labour Relations Court jurisdiction over disputes relating to or arising out of employment and labour relations.
6. Correspondingly, Article 165(5)(b) of the Constitution expressly provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).
7. In Republic v Karisa Chengo & 2 others [2017] eKLR, the Supreme Court affirmed that the High Court and the specialised courts established under Article 162(2) are courts of equal status but exercise distinct jurisdictions. A Judge of one court cannot exercise jurisdiction reserved to another merely because the relief sought is one that a superior court may ordinarily grant.
8. The proposed proceedings directly question the lawfulness of a recruitment and appointment process into a public-service position and seek revocation of the resulting appointment. The dispute is therefore, in substance, a pre-employment and public-service recruitment dispute. It falls within the employment and labour relations jurisdiction contemplated by Article 162(2)(a) and section 12 of the Employment and Labour Relations Court Act.
9. The Employment and Labour Relations Court is competent, within its specialised jurisdiction, to grant appropriate judicial review and constitutional relief. The fact that the Applicant seeks mandamus does not confer jurisdiction upon this Court where the underlying controversy is one reserved to the Employment and Labour Relations Court.
10. I consequently find that this Court lacks jurisdiction to entertain or determine the application for leave. Jurisdiction being everything, as was held in the case of this Court must down its tools without considering the merits of the application.
11. The remaining question is the appropriate disposition. Striking out the application would compel the Applicant, who acts in person, to commence the matter afresh and may expose him to avoidable procedural and limitation difficulties. Since the Employment and Labour Relations Court is a court of equal status sitting at Kericho, the just and proportionate course is to transfer the file to that Court for consideration of the application for leave.
For the foregoing reasons, I make the following orders:
1. The High Court declines jurisdiction over the Chamber Summons dated 12th March 2026.
2. The file shall forthwith be transferred to the Employment and Labour Relations Court at Kericho for directions and for determination of the application for leave.
3. The application for leave remains undetermined.
4. There shall be no order as to costs.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 28TH DAY OF JULY 2026.
T. A. ODERA
JUDGE
Appearances:
Applicant: In person
Court Assistant: Busienei
Ruling — Edwin Njoroge Maina
IN THE HIGH COURT OF KENYA AT KERICHO
CIVIL APPLICATION NO. ______ OF 2026
IN THE MATTER OF AN APPLICATION FOR LEAVE
TO APPLY FOR AN ORDER OF MANDAMUS
EDWIN NJOROGE MAINA
……
APPLICANT
VS
DEPUTY COUNTY COMMISSIONER
……
1ST RESPONDENT
COUNTY COMMISSIONER & ANOTHER
……
2ND & 3RD RESPONDENTS
RULING
1. The Applicant filed Chamber Summons dated 12th March 2026, brought under Order 53 rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The Applicant seeks leave to commence judicial review proceedings in the nature of of mandamus compelling the Respondents to perform what he describes as their statutory duty.
2. The application is supported by the Applicant’s affidavit sworn on 12th March 2026. He states that he is a resident of Kamuingi Sub-Location and challenges the recruitment and appointment of an Assistant Chief II for Kamuingi Sub-Location. His complaint is that the successful candidate is a resident of the neighbouring Masaita Sub-Location, notwithstanding an alleged requirement that an applicant be a resident of Kamuingi Sub-Location.
3. The Applicant further states that protests were made to the relevant administrative officers and that residents forwarded a petition dated 20th May 2025 to the Principal Secretary, Ministry of Interior and National Administration, with copies to the relevant regional and county administrators. He ultimately seeks to compel the Respondents to revoke the appointment and re-advertise the post.
4. Although the application is presented as one for judicial review, jurisdiction is determined by the substance of the dispute and the nature of the relief sought, rather than by the procedural label placed upon the proceedings. The Court must therefore first satisfy itself that it has jurisdiction before considering whether the threshold for leave under Order 53 has been met.
5. Article 162(2)(a) of the Constitution requires Parliament to establish courts of Equal status of the High Court to hear and determine disputes relating to employment and labour relations. Pursuant to that provision, Parliament enacted the Employment and Labour Relations Court Act. Section 12 of that Act vests in the Employment and Labour Relations Court jurisdiction over disputes relating to or arising out of employment and labour relations.
6. Correspondingly, Article 165(5)(b) of the Constitution expressly provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).
7. In Republic v Karisa Chengo & 2 others [2017] eKLR, the Supreme Court affirmed that the High Court and the specialised courts established under Article 162(2) are courts of equal status but exercise distinct jurisdictions. A Judge of one court cannot exercise jurisdiction reserved to another merely because the relief sought is one that a superior court may ordinarily grant.
8. The proposed proceedings directly question the lawfulness of a recruitment and appointment process into a public-service position and seek revocation of the resulting appointment. The dispute is therefore, in substance, a pre-employment and public-service recruitment dispute. It falls within the employment and labour relations jurisdiction contemplated by Article 162(2)(a) and section 12 of the Employment and Labour Relations Court Act.
9. The Employment and Labour Relations Court is competent, within its specialised jurisdiction, to grant appropriate judicial review and constitutional relief. The fact that the Applicant seeks mandamus does not confer jurisdiction upon this Court where the underlying controversy is one reserved to the Employment and Labour Relations Court.
10. I consequently find that this Court lacks jurisdiction to entertain or determine the application for leave. Jurisdiction being everything, as was held in the case of this Court must down its tools without considering the merits of the application.
11. The remaining question is the appropriate disposition. Striking out the application would compel the Applicant, who acts in person, to commence the matter afresh and may expose him to avoidable procedural and limitation difficulties. Since the Employment and Labour Relations Court is a court of equal status sitting at Kericho, the just and proportionate course is to transfer the file to that Court for consideration of the application for leave.
For the foregoing reasons, I make the following orders:
1. The High Court declines jurisdiction over the Chamber Summons dated 12th March 2026.
2. The file shall forthwith be transferred to the Employment and Labour Relations Court at Kericho for directions and for determination of the application for leave.
3. The application for leave remains undetermined.
4. There shall be no order as to costs.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 28TH DAY OF JULY 2026.
T. A. ODERA
JUDGE
Appearances:
Applicant: In person
Court Assistant: Busienei
Ruling — Edwin Njoroge Maina