REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E022 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
FRANCIS AWINO…………..………………………………....….. PETITIONER
VERSUS
JUNE TECLAR CHEPKEMEI……………………………….…. RESPONDENT
RULING
The Petitioner commenced the instant suit on 22nd January, 2026 vide a Petition dated 22nd January, 2026 seeking various reliefs.
Also filed contemporaneously was a Notice of Motion of even date seeking various orders pending the hearing and termination of the Motion and the Petition.
When the matter came up on 27th January, 2026, the court declined to issue Conservatory Orders but directed the Petitioner/Applicant to serve for the Respondents’ response, right of rely and a mention slated for 3rd March, 2026 when directions on the Respondent’s Preliminary Objection were issued and a mention slated for 13th April, 2026.
The Respondent’s contend that:
(i) This court lacks jurisdiction to hear and determine the Petition and the application for want of an employment relationship under section 12 of the Employment and Labour Relations Court Act.
(ii) The Petitioner had no standing to institute the instant suit.
(iii) The Petition and the application were incompetent, misconceived or an abuse of court process.
Respondent’s Submissions
Counsel submitted that the court had no jurisdiction to hear and determine the instant suit by dint of section 12(1) of the Employment and Labour Relations Court Act on account of absence of an employment or labour dispute.
Reliance was also placed on the provisions of Article 162 (2) (a) of the Constitution of Kenya and the decisions in Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others (2012) KESC 8 (KLR), United States International University v Outa & another (2012) KEHC 5516 (KLR) and Kamau v Gichana & another (2023) KEELRC 1769 (KLR), to submit that where a matter did not fall within the court’s mandate, jurisdiction ought to be declined.
Counsel, further submitted that the petitioner lacked locus standi to institute and sustain the instant suit within the meaning of section 12(2) of the Employment and Labour Relations Court Act as he was not one of the persons identified in section 12 (2) of the Act. That Article 22 of the Constitution of Kenya does not override statutory limits on specialized courts.
Finally, reliance was placed on the sentiments of the Court in Clerk, Nakuru County Assembly & 3 others v Odongo & 7 others (2023) KECA 427 (KLR) on locus standi, to urge that allowing the petition to proceed would constitute waste of judicial time.
The Petitioner/Applicant did not file Submissions.
It is trite that when a Preliminary Objection is raised first, the court is enjoined to dispose of the same at the earliest possible instance because of its potential to dispose of the suit before hearing. See Owners of the Motor Vessel Lillian “S” V Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR).
Equally, it is trite law that the tests applicable in determining the merits or otherwise of a Notice of Preliminary Objection are those enunciated by the Court of Appeal in Mukisa Biscuit Manufacturing Co Ltd V. West End Distributors Ltd 1969 EA (696) in the celebrated sentiments of Law JA and Sir Charles Newbold P. at Page 700 and 701 respectively.
In Attorney General & another V Githinji & another (2016) KECA 817 (KLR), the Court of Appeal summarized the test as follows;
“The test to be applied in determining whether the appellant’s Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Muksa Case (Supra). This is first, that the Preliminary Objection raises a pure point of law, second, that there is demonstration that the facts pleaded on the other side are correct; and third, that there is no fact that needs to be ascertained.”
Clearly, since the Respondent are contesting the court’s jurisdiction to hear and determine the instant suit, coupled with the Petitioner/Applicant’s Locus Standi to institute this suit, which are questions of law, the court is satisfied that the Respondent’s Notice of Preliminary Objection dated 10th February 2026 met the threshold of a Preliminary Objection.
I will now proceed to determine whether the Preliminary Objection was merited in the circumstances of the instant suit.
On jurisdiction, it is trite law that jurisdiction is everything as exquisitely captured by Nyarangi JA in Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd (Supra) as follows;
“…Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”
As held in Samuel Kamau Macharia & another V. Kenya Commercial Bank & others (2012) eKLR, a court derives in its jurisdiction from the Constitution or legislation or both and consistent with this proposition, the Employment and Labour Relations Court derives its jurisdiction from the provisions of Article 162 (2) (a) of the Constitution of Kenya and Section 12(1) of the Employment and Labour Relations Court Act.
The issue of jurisdiction of the Employment and Labour Relations court has been addressed in a catena of decisions.
In Stanley Mungai Muchai V. National Oil Corporation (2012) eKLR, the Court of Appeal stated;
“The jurisdiction of the Employment and Labour Relations Court extends to all disputes relating to Employment and Labour Relations. Personal jurisdiction is no longer confined to employers and employees but to all persons implicated in an employment and labour relations disputes.”
Similarly, the preamble of the Employment and Labour Relations Court Act provides that the court was established to hear and determine disputes relating to Employment and Labour Relations and for “connected purposes.” Section 12 (1) of the Act provides that the court has power to hear and determine all disputes relating to and arising out of employment and labour relations.
In Hassan Maanya Kiage V. Attorney General & another (2017) KECA 203 (KLR) the Court of Appeal expressed itself as follows;
“From the foregoing, it is clear to us that the ELRC is clothed with jurisdiction to entertain not only employment and labour disputes but also any incidental issue (s) that may arise or is connected to Employment and Labour Relations. This in turn ensures the economic use of judicial time and resources.”
Contrary to the Respondent’s contention, an employer/employee relationship need not exist in all cases for the Employment and Labour Relations Court to assume jurisdiction in a matter before it.
In Kenya Tea Growers Association & 2 others V. National Social Security Fund Board of Trustees & 13 others (2024) KESC 3 (KLR), the Supreme Court expressed itself as follows;
“…We are in agreement with the Court of Appeal to the effect that this dispute did not arise strictly from an employer-employee relationship. But what about the other aspects of the dispute? What meaning is to be ascribed to the phrase labour relations?...
For the avoidance of doubt, and so as to stop the pendulum of jurisdiction re-jigging that has characterized this case from the beginning, we hereby restate that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters employment and labour. Suffice it to say that the statute in question must be in focus and at the centre of the dispute in question.”
In that case, there was no employer-employee relationship between any of the parties to the suit.
The Petitioner/Applicant herein described himself as a public interest litigant.
Black’s Law Dictionary, 10th Edition defines Public Interest as:
“…the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes especially that justifies Government regulation” In litigation in matters of “general public importance” an understanding of what amounts to ‘public’ or public interest is necessary. “Public” is thus defined: Concerning all members of the community; relating to or concerning people as a whole; a all members of a community; of the state…”
In Mumo Matemu V Trusted Society of Human Right Alliance & 5 others (2015) eKLR, the Supreme Court explained the essence of public interest litigation thus;
“Public interest litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation. This was the constitutions aim in enlarging locus standi in human rights and Constitutional litigation. Locus standi has a close nexus to the right of access to justice. In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application the court has discretion in a case by case basis to evaluate the terms of the public nature of the matter vis -a-vis the status of the parties before it. This discretion is drawn from the command of Article 159 to interpret the Constitution in a manner that promotes its values and purposes advances the role of law human rights and fundamental freedoms permits the development of the law and contributes to good governance.”
Finally, in Kenya Human Rights Commission & another V. Attorney General & 6 others, the Court of Appeal stated:
“Public interest litigation in most cases is for the benefit of the public and not the persons or entities that institute the proceedings. Condemning an unsuccessful party to pay costs in genuine public interest litigation can become a deterrent…”
It is common ground that public interest litigation is an integral part of Kenya’s litigation landscape and to the extent that a court of law or tribunal is satisfied that the litigant was raising a matter (s) of public interest and the litigation appears genuine so far as it is ascertainable, the court ought to exercise its discretion accordingly.
In this case, the Petitioner/Applicant is contesting the appointment of the 1st Respondent as the Chief Executive Officer of the 2nd Respondent, which is a matter of public interest as the office is inter alia a public office and appointment ought to be in accord with the values and principles espoused by the Constitution of Kenya and other prescribed criteria.
In the instant case, there is no evidence that the Petitioner/Applicant stood to benefit individually irrespective of the outcome of the case. In the Premises, the court is satisfied that it has jurisdiction to hear and determine the instant application and suit. The 1st Respondent is an employee of the 2nd Respondent and holds a public office.
As to whether the Petitioner/Applicant has locus standi or standing to institute the petition, the provisions of Article 22 of the Constitution of Kenya expanded locus standi to ensure that violations of human rights and constitutional provisions was remedied at the instigation of litigants with direct or indirect interest in the matter and the instant petition falls within the ambit of Article 22 (2) of the Constitution of Kenya.
In Matemu V Trusted Society of Human Rights Alliance & 5 others (Supra), the Court of Appeal stated thus;
“It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision or without authority of law and such persons or determinate class of persons is by reason of poverty, helpnesses, disability or socio economic disadvantage unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution…
However, we hasten to make it clear that the person who moves the court for judicial redress in cases of this kind, must be acting bona fide with a view to vindicating the cause of justice. Where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be seized at the instance of such person and must reject their application at the threshold…
There can be no doubt that the risk of legal action against the state or a public authority by any citizen will induce the state or such public authority to act with greater responsibility and can thereby improve the administration of justice. Lord Diplock rightly said in Rex V. Inland Revenue Commission (1981) 2 WLR 722 & 740.
“This broadening of the role of locus standi has been largely responsible for the development of public law because it is the only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper payment a leasing illusion and a promise of unreality. It is only liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violation of law…”
Guided by the foregoing propositions, the court is satisfied that the Petition or Applicant has locus standi to institute the instant suit.
Finally, the Respondents tendered no evidence to demonstrate that the Petition was incompetent, misconceived or amounted to an abuse of the court process.
Flowing from the foregoing, it is discernable that the Respondents’ Notice of Preliminary Objection is for dismissal and it is accordingly dismissed.
There shall be no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI
ON THIS 16TH DAY OF JUNE, 2026
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI PETITION E022 OF 2026 RULING2 OF 10 |