SUMMARY OF THE PETITIONER’S CASE
1. The petitioner moved this Court by a petition dated 22 nd May 2023, supported by an affidavit sworn on the same date. The petition challenges the respondent’s fitness to hold office as the Speaker of the County Assembly of Nairobi and as Chair of the County Assembly Service Board. The challenge is founded on alleged illegalities and irregularities said to have been committed by the respondent within the County Assembly.
2. The petitioner claims that the respondent irregularly and unlawfully hired twelve employees to serve in his office contrary to the Salaries & Remuneration Commission Circular, 2023 which allows only five staff members in the Speaker’s office. These include three personal drivers, three secretaries and one communications officer and five ghost workers whose identities remain unknown.
3. The respondent is also accused of facilitating the employment of relatives of some members of the County Assembly including daughters of Hon. Catherine Apiyo Akoth, Hon. Emily Oduor and son of Hon. Wilfred Oluoch to work at the administration department, legal department and Finance Office respectively. The recruitments are unconstitutional as the vacancies were not advertised and the recruitment was not competitive.
4. The petitioner is concerned that the lack of advertisement for the job and shortlisting of the candidates denied other competent residents of Nairobi and Kenya the right to apply and compete for appointment or selection on merit, amounting to abuse of office.
5. It is further pleaded that there is need that appointment of any staff of the County Assembly be done by the Public Service Commission and not the County Service Board. Further that the interested party has legal constitutional duty to step in and conduct the necessary investigations but have failed to do so.
6. The petitioner anchors his case on articles73, 74, 75 (2), 76, 77, 99, 193 and 260 of the Constitution. He seeks the following relief: -
a) An order of declaration declaring the 12 appointments of members of staff of the respondent’s office together with that of the relatives of the Honourable Members of the County Assembly as employees of the Assembly to the exclusion of other employees that is discriminatory and influenced by nepotism, favourism and corrupt practices involving relatives members was in breach of the Employment Act, 2007, the Constitution and internationally recognised labour practices and the same are null and void.
b) An order of declaration to the effect that it is an act of abuse of office and corruption for the respondent to misuse the powers conferred upon him as the chair of the County Service Board and preside over the unlawful and irregular appointment of the 12 members of staff in his office and kin of several members of the County Assembly of Nairobi.
c) An order of certiorari to remove to this Honourable Court, to quash the appointments of the 12 members of staff in working in the respondent’s office and also the kin of several members of the County Assembly of Nairobi.
d) An order of Mandamus directed to the Public Service Commission, directing it to conduct a fresh interviews and appointments of the recommended members to serve in the respondent’s office.
e) An order of mandamus owing to the conduct of the County Assembly Speaker of Nairobi, and borrowing a leaf to similar peculiar happenings within the rest of the Counties within the Republic of Kenya, there is need that appointment of any staff of the County Assembly should be done by the Public Service Commission and not the County Service Board.
f) An order of mandamus compelling the interested party to criminally investigate and, if culpable, instruct the Director of Public Prosecutions (DPP), to criminally prosecute the respondent for his flagrant breach of the law.
g) That this Honourable Court gives any other orders required to advance the cause of justice and the rule of law in this case.
h) That the costs of this petition be borne jointly and severally by the respondents.
SUMMARY OF THE RESPONDENT’S RESPONSE
7. The respondent opposed the petition through preliminary objection dated 15 th June 2023 and replying affidavit sworn by Kennedy Ng’ondi on 22 nd June 2023.
8. The preliminary objection contends that; this court’s lacks jurisdiction in view of section 77 of the County Government’s Act and article 165 (5) of the Constitution. It is further urged that the petition is also not pleaded with precision and specificity.
9. The respondent depones that he does not personally recruit employees of the County Assembly; it is the sole mandate of the County Assembly Services Board. He contends that the petition, to the extent that it challenges the employment of staff of the County Assembly without joining the County Assembly Service Board, it is bad for misjoinder and fit for dismissal.
10. It is contended that the annulment of employment of staff of the County Assembly is a preserve of the Employment and Labour Relations Court. The petition further fails the test of specificity and precision for failing to name and join the employees whose jobs are impugned, thereby condemning them unheard. There is no proof of the alleged relationships between the persons named in the petition.
11. It is posited that the declarations and orders sought in prayers (a), (b), and (c) of the petition are untenable because the affected employees are not named. Equally prayers (d) and (e) would contravene section 12(7) of the County Governments Act.
12. In addition, prayer (f) of the petition cannot issue because there is neither a plea nor proof that the interested party abdicated its obligations, and the Director of Public Prosecutions is also not a party in the proceedings. It is therefore urged that the petition be dismissed with costs.
SUMMARY OF THE INTERESTED PARTY’S RESPONSE
13. The interested party opposed the petition through grounds of opposition dated 6 th June 2023. It asserts that its mandate under article 70 of the Constitution, the Anti-Corruption and Economic Crimes Act, 2003 and the Ethics and Anti-Corruption Commission Act, 2011 is to investigate corruption and economic crimes.
14. It is contended that the petitioner has not demonstrated that he made a complaint on allegations corruption with it or any investigative body and that the complaints have not been acted upon. Similarly, no acts of omissions, attributed to it, have been disclosed by the petitioner which are in violation or are likely to be in violation of the Constitution.
15. It is pleaded that granting the orders sought against the interested party would violate the provisions of article 249 (2) (b) of the Constitution. The petition is therefore premature, the order sought are untenable and it’s continued participation serves no identifiable purpose.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
16. In his submissions dated 28 th May 2026, the petitioner cites the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 ; Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 others [2015] eKLR; Oraro v Mbaja [2005] KEHC 3182 (KLR) and Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] eKLR for the proposition that the preliminary objection does not raise pure points of law. This is because the petition involves highly contested factual and constitutional questions requiring a full hearing.
17. The petitioner submits that this court is properly seized of jurisdiction under articles 22, 23, 165 (3) (b) and (d) and 258 of the Constitution and that the petition challenges the constitutionality, legality and procedural propriety of actions undertaken by the respondent in the exercise of public power. It raises fundamental constitutions questions on the rule of law, transparency and accountability in public service and compliance with article 10 values.
18. The petitioner contends that this is not a mere employer-employee dispute but a constitutional challenge. He relies on the decisions in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR.
19. According to the petitioner, the Public Service Commission lacks jurisdiction to determine constitutional questions on interpretation of the Constitution, legality of impugned appointments and enforcement of Chapter Six of the Constitution. Reliance is placed on Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR and Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
20. It is urged that the doctrine of exhaustion is not absolute with exceptions where, the alternative forum is inadequate; the dispute raises substantial constitutional questions and the statutory body lacks jurisdiction to grant appropriate constitutional reliefs. The petitioner cites the decision in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 Others [2015] eKLR.
21. Citing the decisions in United States International University (USIU) v Attorney General [2012] eKLR and Mitu-Bell Welfare Society Kenya v Kenya Airports Authority & 2 others [2021] eKLR, he argues that reliance on article 165(5) of the Constitution is misguided because the respondent failed to demonstrate how the petition falls exclusively within the jurisdiction of the ELRC.
22. The petitioner relies on the decision in Anarita Karimi Njeru v Republic [1979] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR that the petition satisfies the constitutional threshold and that non-joinder or misjoinder is a mere technicality under article 159 (2) (d) of the Constitution. He urges that the preliminary objection be dismissed with costs.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS
23. In their submissions dated 26 th March 2026, the respondent cites the decisions in Kenya Hotel Properties Ltd v Attorney General & 2 others; Willesden Investments Limited & 2 others (Interested Parties) [2018] KEHC 3255(KLR); Owners of the Motor Vessel “Lillian” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the proposition that jurisdiction can only be derived from the Constitution or statute or both.
24. The respondent cites article 162 (2) and 165(5) of the Constitution, sections 4 and 12 of the ELRC Act and the decision in Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR) for the submission that the petition raises a dispute relating to employment and labour relations and specifically challenges the hiring of about 12 members of the Nairobi County Government. It therefore falls within the jurisdiction of the ELRC.
25. Further reliance is placed on the decisions in United States International University (USIU v General; Outa & another (Interested Parties) (Petition 170 of 2012) [2012] KEHC 5516 (KLR) and Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR).
26. The respondent submits that the petition is incompetent for misjoinder. He does not recruit staff; this mandate lies with the County Public Service Board under section 59 of the County Governments Act. Further, the Board, being a corporate body, is the proper respondent. The petition fails to enjoin the employees whose jobs it seeks to annul, violating the rule of law, natural justice and their right to be heard. He relies on the decisions in Ahmed Hassan v Auditor General [2015] KEHC 4712 (KLR ) and Moses Njue Gachoki & Another V Registrar, Kenya Medical Laboratory Technicians and Technologists Board & 2 Others [2006] eKLR .
27. The respondent maintains that the petition fails the Anarita Karimi Njeru v Republic (1979) KLR 154 precision test, as it does not specify the acts or omissions attributable to him or the constitutional provisions allegedly violated. He also cites the decision in Elaki v Sub-County Commissioner Hamisi & 4 others (Environment & Land Petition E002 of 2022) [2023] KEELC 18021 (KLR ) for the submission that the petitioner has also not discharged the burden of proof; the petition and affidavit contain mere allegations without evidence of wrongdoing or constitutional breach.
28. The respondent urges that the preliminary objection be allowed and the petition be dismissed with costs.
29. Having considered the pleadings filed herein, the rival submissions along the relevant law, I frame the following as the issues for determination;
a) Whether the preliminary objection as framed meets the legal threshold?
b) Whether the Petition is justiciable?
c) Whether the petition meets the precision threshold as established in the Anarita Karimi case ?
d) What are the Consequential orders arising from (a), (b) and ( c) above?
Whether the preliminary objection as framed meets the legal threshold?
30. The Supreme Court in the decision in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) restated the threshold of a valid preliminary objection thus;
[31].To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point 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.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
31. As noted above, the preliminary objection challenges the jurisdiction of this Court, stating that the Section 77 vests the Public Service Commission with the mandate to address any grievances or objections to decisions of the County government in relation to the employment of any person. The Supreme Court in Munene v Kingara and 2 others [2014] eKLR , stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.
32. I therefore find that the Preliminary objection meets the Mukisa Test . The Supreme Court in Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) stated as follows;
[41].This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
33. Similarly, The Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) stated: -
36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
34. In effect, the Respondent’s argument is that the Petition runs afoul of the doctrine of exhaustion. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) was categorical-
[15] In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
35. Further in William Odhiambo Ramogi & 3 Others V Attorney General & 4 Others [2020] eKLR , the Court of Appeal stated:
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure a party is fi rst of all diligent in the protection of his own interest within the mechanism in place for resolution outside the courts
36. It is submitted that Section 77 of the County Government Act provides a detailed mechanism for handling challenges to recruitments by the County Government. Secondly, the Ethics and Anti-Corruption Commission has the constitutional mandate to inquire into and determine questions of abuse of office.
37. In International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] KEHC 5367 (KLR) the court stated as follows regarding an inquiry on the suitability and fitness to hold office;
[137]. In our view, the key question is whether this Court is the right forum, in the first instance, to undertake an assessment of the integrity of persons presenting themselves for public office. The court ideally operates in an environment of competing legal claims founded on evidence. However, in the private sector, the enforcement of general standards of ethical conduct or professional responsibilities are, by their nature, generally collegial exercises, where peers must judge the conduct of those within their own group, profession, or own organization. In the public sector, enforcement of ethics is, to a large extent, similar to the above procedure in the private sector save that the same is regulated by statute. The mechanisms of inquiry would be set out in the parent statute. Such institutions, for example the IEBC and Ethics and Anti-Corruption Commission (EACC) are bestowed with the necessary powers to conduct, inquire and take disciplinary action.
[138]. The Court should not descend into that arena of inquiry. Its proper role is to ensure that the inquiry is undertaken to the acceptable standards set by the Constitution. This is what distinguishes the present petitions from the one in the Trusted Society of Human Rights Alliance case (supra). In the Trusted Society case some form of inquiry had been undertaken, and the Court found that despite the said inquiry, there were still unresolved questions about the integrity of the candidate in question. There is no evidence before us of any such inquiry having been undertaken in respect of the 3rd and 4th Respondents’ integrity by the relevant institutions established by statute. Our findings as to the inquiries on the integrity of the 5th Respondent are discussed in detail elsewhere in this judgment .
38. This Petition would survive if the Petitioner were to bring himself within the established exceptions to the Doctrine of exhaustion as articulated by the Court in Ramogi & 2 others v Attorney General & 3 others; Muslims for Human Rights & 2 others (Interested Parties) [2018] KEHC 9718 (KLR). In that case, the Court clarified that a statutory remedy need not be pursued where it is plainly incapable of addressing the constitutional grievance before the Court, the doctrine will yield where the alternative forum lacks jurisdiction, where the remedy offered is ineffective or illusory, where the dispute raises bona fide constitutional questions, where fundamental rights are threatened, or where exceptional circumstances render immediate judicial intervention necessary. A litigant cannot be driven to a forum that is powerless to grant relief, nor can the Court fold its arms where rights are in jeopardy.
39. The Petitioner bore the duty to demonstrate, with clarity and precision, that this Court possessed jurisdiction notwithstanding the doctrine of exhaustion. He has failed to discharge that burden, and the Preliminary Objection is therefore upheld. The Petition collapses at this threshold stage, leaving no room for the Court to venture into the remaining issues
40. Each party will bear their costs.
DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH SEPTEMBER 2026
1. The petitioner moved this Court by a petition dated 22 nd May 2023, supported by an affidavit sworn on the same date. The petition challenges the respondent’s fitness to hold office as the Speaker of the County Assembly of Nairobi and as Chair of the County Assembly Service Board. The challenge is founded on alleged illegalities and irregularities said to have been committed by the respondent within the County Assembly.
2. The petitioner claims that the respondent irregularly and unlawfully hired twelve employees to serve in his office contrary to the Salaries & Remuneration Commission Circular, 2023 which allows only five staff members in the Speaker’s office. These include three personal drivers, three secretaries and one communications officer and five ghost workers whose identities remain unknown.
3. The respondent is also accused of facilitating the employment of relatives of some members of the County Assembly including daughters of Hon. Catherine Apiyo Akoth, Hon. Emily Oduor and son of Hon. Wilfred Oluoch to work at the administration department, legal department and Finance Office respectively. The recruitments are unconstitutional as the vacancies were not advertised and the recruitment was not competitive.
4. The petitioner is concerned that the lack of advertisement for the job and shortlisting of the candidates denied other competent residents of Nairobi and Kenya the right to apply and compete for appointment or selection on merit, amounting to abuse of office.
5. It is further pleaded that there is need that appointment of any staff of the County Assembly be done by the Public Service Commission and not the County Service Board. Further that the interested party has legal constitutional duty to step in and conduct the necessary investigations but have failed to do so.
6. The petitioner anchors his case on articles73, 74, 75 (2), 76, 77, 99, 193 and 260 of the Constitution. He seeks the following relief: -
a) An order of declaration declaring the 12 appointments of members of staff of the respondent’s office together with that of the relatives of the Honourable Members of the County Assembly as employees of the Assembly to the exclusion of other employees that is discriminatory and influenced by nepotism, favourism and corrupt practices involving relatives members was in breach of the Employment Act, 2007, the Constitution and internationally recognised labour practices and the same are null and void.
b) An order of declaration to the effect that it is an act of abuse of office and corruption for the respondent to misuse the powers conferred upon him as the chair of the County Service Board and preside over the unlawful and irregular appointment of the 12 members of staff in his office and kin of several members of the County Assembly of Nairobi.
c) An order of certiorari to remove to this Honourable Court, to quash the appointments of the 12 members of staff in working in the respondent’s office and also the kin of several members of the County Assembly of Nairobi.
d) An order of Mandamus directed to the Public Service Commission, directing it to conduct a fresh interviews and appointments of the recommended members to serve in the respondent’s office.
e) An order of mandamus owing to the conduct of the County Assembly Speaker of Nairobi, and borrowing a leaf to similar peculiar happenings within the rest of the Counties within the Republic of Kenya, there is need that appointment of any staff of the County Assembly should be done by the Public Service Commission and not the County Service Board.
f) An order of mandamus compelling the interested party to criminally investigate and, if culpable, instruct the Director of Public Prosecutions (DPP), to criminally prosecute the respondent for his flagrant breach of the law.
g) That this Honourable Court gives any other orders required to advance the cause of justice and the rule of law in this case.
h) That the costs of this petition be borne jointly and severally by the respondents.
SUMMARY OF THE RESPONDENT’S RESPONSE
7. The respondent opposed the petition through preliminary objection dated 15 th June 2023 and replying affidavit sworn by Kennedy Ng’ondi on 22 nd June 2023.
8. The preliminary objection contends that; this court’s lacks jurisdiction in view of section 77 of the County Government’s Act and article 165 (5) of the Constitution. It is further urged that the petition is also not pleaded with precision and specificity.
9. The respondent depones that he does not personally recruit employees of the County Assembly; it is the sole mandate of the County Assembly Services Board. He contends that the petition, to the extent that it challenges the employment of staff of the County Assembly without joining the County Assembly Service Board, it is bad for misjoinder and fit for dismissal.
10. It is contended that the annulment of employment of staff of the County Assembly is a preserve of the Employment and Labour Relations Court. The petition further fails the test of specificity and precision for failing to name and join the employees whose jobs are impugned, thereby condemning them unheard. There is no proof of the alleged relationships between the persons named in the petition.
11. It is posited that the declarations and orders sought in prayers (a), (b), and (c) of the petition are untenable because the affected employees are not named. Equally prayers (d) and (e) would contravene section 12(7) of the County Governments Act.
12. In addition, prayer (f) of the petition cannot issue because there is neither a plea nor proof that the interested party abdicated its obligations, and the Director of Public Prosecutions is also not a party in the proceedings. It is therefore urged that the petition be dismissed with costs.
SUMMARY OF THE INTERESTED PARTY’S RESPONSE
13. The interested party opposed the petition through grounds of opposition dated 6 th June 2023. It asserts that its mandate under article 70 of the Constitution, the Anti-Corruption and Economic Crimes Act, 2003 and the Ethics and Anti-Corruption Commission Act, 2011 is to investigate corruption and economic crimes.
14. It is contended that the petitioner has not demonstrated that he made a complaint on allegations corruption with it or any investigative body and that the complaints have not been acted upon. Similarly, no acts of omissions, attributed to it, have been disclosed by the petitioner which are in violation or are likely to be in violation of the Constitution.
15. It is pleaded that granting the orders sought against the interested party would violate the provisions of article 249 (2) (b) of the Constitution. The petition is therefore premature, the order sought are untenable and it’s continued participation serves no identifiable purpose.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
16. In his submissions dated 28 th May 2026, the petitioner cites the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 ; Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 others [2015] eKLR; Oraro v Mbaja [2005] KEHC 3182 (KLR) and Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] eKLR for the proposition that the preliminary objection does not raise pure points of law. This is because the petition involves highly contested factual and constitutional questions requiring a full hearing.
17. The petitioner submits that this court is properly seized of jurisdiction under articles 22, 23, 165 (3) (b) and (d) and 258 of the Constitution and that the petition challenges the constitutionality, legality and procedural propriety of actions undertaken by the respondent in the exercise of public power. It raises fundamental constitutions questions on the rule of law, transparency and accountability in public service and compliance with article 10 values.
18. The petitioner contends that this is not a mere employer-employee dispute but a constitutional challenge. He relies on the decisions in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR.
19. According to the petitioner, the Public Service Commission lacks jurisdiction to determine constitutional questions on interpretation of the Constitution, legality of impugned appointments and enforcement of Chapter Six of the Constitution. Reliance is placed on Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR and Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
20. It is urged that the doctrine of exhaustion is not absolute with exceptions where, the alternative forum is inadequate; the dispute raises substantial constitutional questions and the statutory body lacks jurisdiction to grant appropriate constitutional reliefs. The petitioner cites the decision in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 Others [2015] eKLR.
21. Citing the decisions in United States International University (USIU) v Attorney General [2012] eKLR and Mitu-Bell Welfare Society Kenya v Kenya Airports Authority & 2 others [2021] eKLR, he argues that reliance on article 165(5) of the Constitution is misguided because the respondent failed to demonstrate how the petition falls exclusively within the jurisdiction of the ELRC.
22. The petitioner relies on the decision in Anarita Karimi Njeru v Republic [1979] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR that the petition satisfies the constitutional threshold and that non-joinder or misjoinder is a mere technicality under article 159 (2) (d) of the Constitution. He urges that the preliminary objection be dismissed with costs.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS
23. In their submissions dated 26 th March 2026, the respondent cites the decisions in Kenya Hotel Properties Ltd v Attorney General & 2 others; Willesden Investments Limited & 2 others (Interested Parties) [2018] KEHC 3255(KLR); Owners of the Motor Vessel “Lillian” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the proposition that jurisdiction can only be derived from the Constitution or statute or both.
24. The respondent cites article 162 (2) and 165(5) of the Constitution, sections 4 and 12 of the ELRC Act and the decision in Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR) for the submission that the petition raises a dispute relating to employment and labour relations and specifically challenges the hiring of about 12 members of the Nairobi County Government. It therefore falls within the jurisdiction of the ELRC.
25. Further reliance is placed on the decisions in United States International University (USIU v General; Outa & another (Interested Parties) (Petition 170 of 2012) [2012] KEHC 5516 (KLR) and Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR).
26. The respondent submits that the petition is incompetent for misjoinder. He does not recruit staff; this mandate lies with the County Public Service Board under section 59 of the County Governments Act. Further, the Board, being a corporate body, is the proper respondent. The petition fails to enjoin the employees whose jobs it seeks to annul, violating the rule of law, natural justice and their right to be heard. He relies on the decisions in Ahmed Hassan v Auditor General [2015] KEHC 4712 (KLR ) and Moses Njue Gachoki & Another V Registrar, Kenya Medical Laboratory Technicians and Technologists Board & 2 Others [2006] eKLR .
27. The respondent maintains that the petition fails the Anarita Karimi Njeru v Republic (1979) KLR 154 precision test, as it does not specify the acts or omissions attributable to him or the constitutional provisions allegedly violated. He also cites the decision in Elaki v Sub-County Commissioner Hamisi & 4 others (Environment & Land Petition E002 of 2022) [2023] KEELC 18021 (KLR ) for the submission that the petitioner has also not discharged the burden of proof; the petition and affidavit contain mere allegations without evidence of wrongdoing or constitutional breach.
28. The respondent urges that the preliminary objection be allowed and the petition be dismissed with costs.
29. Having considered the pleadings filed herein, the rival submissions along the relevant law, I frame the following as the issues for determination;
a) Whether the preliminary objection as framed meets the legal threshold?
b) Whether the Petition is justiciable?
c) Whether the petition meets the precision threshold as established in the Anarita Karimi case ?
d) What are the Consequential orders arising from (a), (b) and ( c) above?
Whether the preliminary objection as framed meets the legal threshold?
30. The Supreme Court in the decision in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) restated the threshold of a valid preliminary objection thus;
[31].To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point 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.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
31. As noted above, the preliminary objection challenges the jurisdiction of this Court, stating that the Section 77 vests the Public Service Commission with the mandate to address any grievances or objections to decisions of the County government in relation to the employment of any person. The Supreme Court in Munene v Kingara and 2 others [2014] eKLR , stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.
32. I therefore find that the Preliminary objection meets the Mukisa Test . The Supreme Court in Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) stated as follows;
[41].This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
33. Similarly, The Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) stated: -
36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
34. In effect, the Respondent’s argument is that the Petition runs afoul of the doctrine of exhaustion. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) was categorical-
[15] In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
35. Further in William Odhiambo Ramogi & 3 Others V Attorney General & 4 Others [2020] eKLR , the Court of Appeal stated:
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure a party is fi rst of all diligent in the protection of his own interest within the mechanism in place for resolution outside the courts
36. It is submitted that Section 77 of the County Government Act provides a detailed mechanism for handling challenges to recruitments by the County Government. Secondly, the Ethics and Anti-Corruption Commission has the constitutional mandate to inquire into and determine questions of abuse of office.
37. In International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] KEHC 5367 (KLR) the court stated as follows regarding an inquiry on the suitability and fitness to hold office;
[137]. In our view, the key question is whether this Court is the right forum, in the first instance, to undertake an assessment of the integrity of persons presenting themselves for public office. The court ideally operates in an environment of competing legal claims founded on evidence. However, in the private sector, the enforcement of general standards of ethical conduct or professional responsibilities are, by their nature, generally collegial exercises, where peers must judge the conduct of those within their own group, profession, or own organization. In the public sector, enforcement of ethics is, to a large extent, similar to the above procedure in the private sector save that the same is regulated by statute. The mechanisms of inquiry would be set out in the parent statute. Such institutions, for example the IEBC and Ethics and Anti-Corruption Commission (EACC) are bestowed with the necessary powers to conduct, inquire and take disciplinary action.
[138]. The Court should not descend into that arena of inquiry. Its proper role is to ensure that the inquiry is undertaken to the acceptable standards set by the Constitution. This is what distinguishes the present petitions from the one in the Trusted Society of Human Rights Alliance case (supra). In the Trusted Society case some form of inquiry had been undertaken, and the Court found that despite the said inquiry, there were still unresolved questions about the integrity of the candidate in question. There is no evidence before us of any such inquiry having been undertaken in respect of the 3rd and 4th Respondents’ integrity by the relevant institutions established by statute. Our findings as to the inquiries on the integrity of the 5th Respondent are discussed in detail elsewhere in this judgment .
38. This Petition would survive if the Petitioner were to bring himself within the established exceptions to the Doctrine of exhaustion as articulated by the Court in Ramogi & 2 others v Attorney General & 3 others; Muslims for Human Rights & 2 others (Interested Parties) [2018] KEHC 9718 (KLR). In that case, the Court clarified that a statutory remedy need not be pursued where it is plainly incapable of addressing the constitutional grievance before the Court, the doctrine will yield where the alternative forum lacks jurisdiction, where the remedy offered is ineffective or illusory, where the dispute raises bona fide constitutional questions, where fundamental rights are threatened, or where exceptional circumstances render immediate judicial intervention necessary. A litigant cannot be driven to a forum that is powerless to grant relief, nor can the Court fold its arms where rights are in jeopardy.
39. The Petitioner bore the duty to demonstrate, with clarity and precision, that this Court possessed jurisdiction notwithstanding the doctrine of exhaustion. He has failed to discharge that burden, and the Preliminary Objection is therefore upheld. The Petition collapses at this threshold stage, leaving no room for the Court to venture into the remaining issues
40. Each party will bear their costs.
DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH SEPTEMBER 2026