JUDGMENT
Introduction.
1. By a Notice of Motion dated the 3 rd day of July, 2025 the Ex Parte Applicants moved this Honourable Court seeking for orders inter alia;
a) That an ORDER OF CERTIORARI be issued removing to this Honourable Court for purposes of being quashed the letter dated the 25 th day of April, 2025 and the matching orders thereof in as far as the purported deployment of the Applicant herein is concerned.
b) That the costs of the Application be in favour of the Ex parte Applicants.
2. The Exparte Applicants are challenging the decision of the Respondents to allegedly arbitrarily transfer several affected police officers serving in Kispaina Police Station in Trans - Nzoia County from their respective stations to other stations outside the County.
3. Before considering the substantive complaints raised by the Ex Parte Applicant, the Court must first determine whether it has jurisdiction to entertain these proceedings. This is so because jurisdiction is foundational and where it is absent then a court cannot proceed to determine the merits of a matter.
Analysis and Determination
4. The central question for determination is whether a dispute concerning the transfer or deployment of police officers from one station to another falls within the jurisdiction of the High Court or that of the Employment and Labour Relations Court.
5. Article 162(2)(a) of the Constitution provides:
“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations…”
6. Further pursuant to Article 162(3) of the Constitution , Parliament enacted the Employment and Labour Relations Court Act, No. 20 of 2011 whereby Section 12(1 ) of the Act provides, in the relevant part, that:
“ The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
(a) disputes relating to or arising out of employment between an employer and an employee…”
7. Further I note that the constitutional demarcation of jurisdiction is further made clear by Article 165(5) of the Constitution , which provides:
“The High Court shall not have jurisdiction in respect
of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).”
8. The effect of these provisions is that although the High Court possesses broad jurisdiction under Article 165(3) of the Constitution, that jurisdiction is expressly subject to Article 165(5).
9. It is therefore my considered view that the High Court therefore cannot assume jurisdiction over a dispute which falls within the exclusive constitutional and statutory mandate of the Employment and Labour Relations Court.
10. In the present case, the substance of the Applicants’ complaint concerns the transfer and deployment of police officers from their respective stations within Trans Nzoia County to stations outside the County namely Turkana and Samburu Counties.
11. The impugned decisions directly concern the officers' places of work and therefore arise from and affect their employment relationship with the National Police Service.
12. The fact that the Applicants have approached the Court by way of judicial review does not confer jurisdiction upon the High Court.
13. Reliance is placed in Republic v Permanent Secretary, Provincial Administration & Internal Security , Office of the President & another; Maengo (Ex parte) [2023] KEHC 23660 (KLR ) , where the High Court considered a challenge arising from an employment relationship and recognized that Section 12 of the Employment and Labour Relations Court Act confers exclusive jurisdiction upon the ELRC over disputes relating to or arising out of employment. The Court further recognized that the ELRC has jurisdiction to determine constitutional and Labour rights issues arising within its employment jurisdiction.
14. Further in Republic v James Maina Ng’ang’a alias Apostle Nganga & 3 others [2020] KEHC 4883 (KLR ) , the High Court considered a dispute concerning the interdiction of a police officer and held that the dispute arose from the relationship between the police officer as employee and the National Police Service as the employer, and that the proper forum was the Employment and Labour Relations Court.
15. It is also material that Section 12(3) of the Employment and Labour Relations Court Act empowers that Court, in exercise of its jurisdiction, to grant appropriate relief including:
(i) interim preservation orders including injunctions in cases of urgency;
(ii) a prohibitory order;
(iii) an order for specific performance;
(iv) a declaratory order;
(v) an award of compensation in any circumstances contemplated under this Act or any written law;
(vi) an award of damages in any circumstances contemplated under this Act or any written law;
(vii) an order for reinstatement of any employee within three years of dismissal…; or
(viii) (viii) any other appropriate relief as the Court may deem fit to grant. ”
16. The prayers being sought by the Applicant are well noted in the in the said Act making the ELRC constitutionally and statutorily equipped to deal with the issues they have raised in this Application.
17. Reliance is further placed in the Supreme Court decision in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR , where the Court held that a court's jurisdiction flows from either the Constitution or legislation and that a court cannot assume to itself jurisdiction exceeding that conferred by law and this principle has consistently been applied in determining the jurisdictional boundaries between the High Court and the specialized courts.
18. Further in Republic v Chengo & 2 others [2017] KESC 15 (KLR) , the Supreme Court further emphasized the distinct constitutional status and jurisdiction of the High Court, the Employment and Labour Relations Court and the Environment and Land Court and the Supreme Court underscored that the fact that these courts possess the same status does not make them interchangeable as each exercises a distinct and constitutionally defined jurisdiction.
19. In view of the foregoing, I find that the dispute before the Court is in substance an employment and Labour relations dispute as provided for under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
20. The position on the jurisdiction of the ELRC Court is further fortified by the recent decision of the Supreme Court in SC PT No. E030 as consolidated with E033 of 2025, Moi Teaching & Referral Hospital& 3 Others vs. Magare Gikenyi & 76 Others , where the court restated the holding in Kenya Tea Growers Association & 2 others Vs The National Social Security Fund Board of Trustees & 13 others , where the Court declared that:
“ 79. In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute. This is especially so if the statute in question lies at the centre of the dispute. What it cannot do, is to sit as if it were the High Court under article 165 of the Constitution, and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and labour within the context of the ELRC Act. But, if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the Constitution, a question arises regarding the constitutional Page 22 of 36 SC PT No. E030 as consolidated with E033 of 2025 validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue. Otherwise, how else would it comprehensively and with finality determine such a dispute? Stripping the court of such authority would leave it jurisdictionally hum-strung; a consequence that could hardly have been envisaged by the framers of the Constitution, even as they precluded the High Court from exercising jurisdiction over matters employment and labour pursuant to article 165(5)(b). We are therefore in agreement with the appellants’ submissions regarding this issue as encapsulated in paragraph 69 of this Judgment. ...... 87. For the avoidance of doubt, and so as to stop the pendulum of jurisdictional re-jigging that has characterised 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 ...”
21. Therefore, by virtue of Article 165(5)(b) of the Constitution and the decision above, this Court has declines to assume jurisdiction to entertain and determine the merits of the application dated the 3 rd day of July, 2025 and I hereby strike it out for want of jurisdiction.
22. The Applicant shall be at liberty to pursue the appropriate remedy before the appropriate Court subject to the applicable law and limitation periods.
23. Each party shall bear its own costs.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 8 th Day of September 2026.
HC JR NO. E008 OF 2025 REPUBLIC VS NATIONAL POLICE SERVICE & 6 OTHERS JUDGMENT Pg. 7
Introduction.
1. By a Notice of Motion dated the 3 rd day of July, 2025 the Ex Parte Applicants moved this Honourable Court seeking for orders inter alia;
a) That an ORDER OF CERTIORARI be issued removing to this Honourable Court for purposes of being quashed the letter dated the 25 th day of April, 2025 and the matching orders thereof in as far as the purported deployment of the Applicant herein is concerned.
b) That the costs of the Application be in favour of the Ex parte Applicants.
2. The Exparte Applicants are challenging the decision of the Respondents to allegedly arbitrarily transfer several affected police officers serving in Kispaina Police Station in Trans - Nzoia County from their respective stations to other stations outside the County.
3. Before considering the substantive complaints raised by the Ex Parte Applicant, the Court must first determine whether it has jurisdiction to entertain these proceedings. This is so because jurisdiction is foundational and where it is absent then a court cannot proceed to determine the merits of a matter.
Analysis and Determination
4. The central question for determination is whether a dispute concerning the transfer or deployment of police officers from one station to another falls within the jurisdiction of the High Court or that of the Employment and Labour Relations Court.
5. Article 162(2)(a) of the Constitution provides:
“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations…”
6. Further pursuant to Article 162(3) of the Constitution , Parliament enacted the Employment and Labour Relations Court Act, No. 20 of 2011 whereby Section 12(1 ) of the Act provides, in the relevant part, that:
“ The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
(a) disputes relating to or arising out of employment between an employer and an employee…”
7. Further I note that the constitutional demarcation of jurisdiction is further made clear by Article 165(5) of the Constitution , which provides:
“The High Court shall not have jurisdiction in respect
of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).”
8. The effect of these provisions is that although the High Court possesses broad jurisdiction under Article 165(3) of the Constitution, that jurisdiction is expressly subject to Article 165(5).
9. It is therefore my considered view that the High Court therefore cannot assume jurisdiction over a dispute which falls within the exclusive constitutional and statutory mandate of the Employment and Labour Relations Court.
10. In the present case, the substance of the Applicants’ complaint concerns the transfer and deployment of police officers from their respective stations within Trans Nzoia County to stations outside the County namely Turkana and Samburu Counties.
11. The impugned decisions directly concern the officers' places of work and therefore arise from and affect their employment relationship with the National Police Service.
12. The fact that the Applicants have approached the Court by way of judicial review does not confer jurisdiction upon the High Court.
13. Reliance is placed in Republic v Permanent Secretary, Provincial Administration & Internal Security , Office of the President & another; Maengo (Ex parte) [2023] KEHC 23660 (KLR ) , where the High Court considered a challenge arising from an employment relationship and recognized that Section 12 of the Employment and Labour Relations Court Act confers exclusive jurisdiction upon the ELRC over disputes relating to or arising out of employment. The Court further recognized that the ELRC has jurisdiction to determine constitutional and Labour rights issues arising within its employment jurisdiction.
14. Further in Republic v James Maina Ng’ang’a alias Apostle Nganga & 3 others [2020] KEHC 4883 (KLR ) , the High Court considered a dispute concerning the interdiction of a police officer and held that the dispute arose from the relationship between the police officer as employee and the National Police Service as the employer, and that the proper forum was the Employment and Labour Relations Court.
15. It is also material that Section 12(3) of the Employment and Labour Relations Court Act empowers that Court, in exercise of its jurisdiction, to grant appropriate relief including:
(i) interim preservation orders including injunctions in cases of urgency;
(ii) a prohibitory order;
(iii) an order for specific performance;
(iv) a declaratory order;
(v) an award of compensation in any circumstances contemplated under this Act or any written law;
(vi) an award of damages in any circumstances contemplated under this Act or any written law;
(vii) an order for reinstatement of any employee within three years of dismissal…; or
(viii) (viii) any other appropriate relief as the Court may deem fit to grant. ”
16. The prayers being sought by the Applicant are well noted in the in the said Act making the ELRC constitutionally and statutorily equipped to deal with the issues they have raised in this Application.
17. Reliance is further placed in the Supreme Court decision in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR , where the Court held that a court's jurisdiction flows from either the Constitution or legislation and that a court cannot assume to itself jurisdiction exceeding that conferred by law and this principle has consistently been applied in determining the jurisdictional boundaries between the High Court and the specialized courts.
18. Further in Republic v Chengo & 2 others [2017] KESC 15 (KLR) , the Supreme Court further emphasized the distinct constitutional status and jurisdiction of the High Court, the Employment and Labour Relations Court and the Environment and Land Court and the Supreme Court underscored that the fact that these courts possess the same status does not make them interchangeable as each exercises a distinct and constitutionally defined jurisdiction.
19. In view of the foregoing, I find that the dispute before the Court is in substance an employment and Labour relations dispute as provided for under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
20. The position on the jurisdiction of the ELRC Court is further fortified by the recent decision of the Supreme Court in SC PT No. E030 as consolidated with E033 of 2025, Moi Teaching & Referral Hospital& 3 Others vs. Magare Gikenyi & 76 Others , where the court restated the holding in Kenya Tea Growers Association & 2 others Vs The National Social Security Fund Board of Trustees & 13 others , where the Court declared that:
“ 79. In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute. This is especially so if the statute in question lies at the centre of the dispute. What it cannot do, is to sit as if it were the High Court under article 165 of the Constitution, and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and labour within the context of the ELRC Act. But, if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the Constitution, a question arises regarding the constitutional Page 22 of 36 SC PT No. E030 as consolidated with E033 of 2025 validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue. Otherwise, how else would it comprehensively and with finality determine such a dispute? Stripping the court of such authority would leave it jurisdictionally hum-strung; a consequence that could hardly have been envisaged by the framers of the Constitution, even as they precluded the High Court from exercising jurisdiction over matters employment and labour pursuant to article 165(5)(b). We are therefore in agreement with the appellants’ submissions regarding this issue as encapsulated in paragraph 69 of this Judgment. ...... 87. For the avoidance of doubt, and so as to stop the pendulum of jurisdictional re-jigging that has characterised 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 ...”
21. Therefore, by virtue of Article 165(5)(b) of the Constitution and the decision above, this Court has declines to assume jurisdiction to entertain and determine the merits of the application dated the 3 rd day of July, 2025 and I hereby strike it out for want of jurisdiction.
22. The Applicant shall be at liberty to pursue the appropriate remedy before the appropriate Court subject to the applicable law and limitation periods.
23. Each party shall bear its own costs.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 8 th Day of September 2026.
HC JR NO. E008 OF 2025 REPUBLIC VS NATIONAL POLICE SERVICE & 6 OTHERS JUDGMENT Pg. 7