REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E331 OF 2026
IN THE MATTER OF: ARTICLES 10, 22, 23, 73, AND 232 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: CIVIL AVIATION ACT CAP 394 OF LAWS OF KENYA
AND
IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT, NO 4. OF 2015
AND
IN THE MATTER OF: KCAA CAREER GUIDELINES, 2025
AND
IN THE MATTER OF: PUBLIC SERVICE MANAGEMENT ACT
AND
IN THE MATTER OF: KCAA HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL
-BETWEEN-
HUMPHREY BULIMU AGAMU ……..... 1 ST PETITIONER/APPLICANT
CHARLES MUTYETU MWANZIA ……. 2 ND PETITIONER/APPLICANT
AND
KENYA CIVIL AVIATION AUTHORITY ..................... 1 ST RESPONDENT
CABINET SECRETARY FOR
ROADS AND TRANSPORT…….....................................2 ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL ………3 RD RESPONDENT
ANNE TOO ....………………...………..………...……... 4 TH RESPONDENT
RULNG ON CONSERVATORY ORDERS
Introduction
1. This Ruling determines the Notice of Motion Application dated 27 th May 2026 seeking inter alia, conservatory orders to stop the impugned recruitment process for the position of Director General of the Kenya Civil aviation Authority, unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act. The Petitioners/Applicants had also previously sought interim ex-parte orders to halt the process and the Court did grant interim orders staying the recruitment process.
2. At the commencement of the Petition and application for conservatory orders brought under certificate of urgency, this Court declined to grant ex-parte reliefs and instead directed the Petitioners to file and serve the Respondents with the Petition and the Notice of Motion and further invited the parties for inter-partes directions on 2 nd June 2026. On the latter date, The Petitioners’ Counsel urged the Court to grant an interim relief owing to the urgency of the matter and arguing that should the 1 st Respondent not be restrained from continuing with recruitment of the Director General, they will continue with the process and conclude it.
3. In an interlocutory interim Ruling dated 3 rd June 2026 , this Court granted temporary conservatory orders staying the already commenced process of recruitment of the Director General of the Kenya Civil Aviation Authority by the 1 st Respondent’s Board until the application for conservatory orders is heard and determined.
The Petition and Application
4. The Petition dated 27 th May 2026 seeks several orders/reliefs namely:
(a) A declaration that the resolution of the 1 st Respondent’s Board of Directors to advertise, commence and undertake the competitive recruitment process for the position of Director-General of the 1 st Respondent was unlawful, unconstitutional, null and void for want of the mandatory statutory quorum prescribed under Section 17(2) of the Civil Aviation Act.
(b) A declaration that the continued participation and/or holding of office by the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors after 20 th April 2026 is unlawful, illegal and contrary to Section 13(6) of the Civil Aviation Act.
(c) A permanent injunction restraining the 1 st Respondent, whether by itself, its Board of Directors, officers, servants, agents or whosoever acting under its authority, from proceeding with, continuing, concluding or making any appointment pursuant to the impugned recruitment process for the position of Director-General unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act.
(d) A permanent injunction restraining the Board of Directors of the 1 st Respondent from conducting the business and affairs of the 1 st Respondent unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act.
(e) An order compelling the 2 nd Respondent to undertake and/or ensure compliance with Section 13(6) of the Civil Aviation Act by filling the existing vacancies in the 1 st Respondent’s Board of Directors through an open, transparent and competitive recruitment process in accordance with the Constitution and the law.
(f) An order directing that any future recruitment process for the position of Director-General of the 1 st Respondent be conducted strictly in accordance with the Constitution, the Civil Aviation Act, the Kenya Civil Aviation Authority Human Resource Policies and Procedures Manual and the Kenya Civil Aviation Authority Career Guidelines, 2025.
(g) Costs of this Petition together with interest thereon.
(h) Any other or further relief that this Honourable Court may deem just and fit to grant in the circumstances.
5. Concurrent with the Petition, the Petitioners filed a Notice of Motion dated evenly with the Petition and supported by the 1 st Petitioner’s Affidavit sworn on the 27 th May, 2026, seeking conservatory orders pending hearing and determination of the Petition as well as interim reliefs to be granted ex-part e in the first instance. They prayed for the following Orders: -
(1 THAT this Application be certified urgent and heard ex-parte in the first instance and on a priority basis.
(2 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of Director-General.
(3 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of Director-General.
(4 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to restrain the 1 st Respondent’s Board from transacting the business and affairs of the 1 st Respondent before it is properly constituted.
(5 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to restrain the 1 st Respondent’s Board from transacting the business and affairs of the 1 st Respondent before it is properly constituted.
(6 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors on the ground that her term lapsed on 20 th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace.
(7 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors on the ground that her term lapsed on 20 th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace.
(8 THAT this court be pleased to fast track the hearing and determination of the Claim.
6. The Application is predicated on the grounds on its face and the 1 st Petitioner’s Supporting Affidavit sworn on 27 th May 2026 in which he challenges on his own behalf and of the 2 nd Applicant, the Kenya Civil Aviation Authority (KCAA) Board of Directors’ decision to initiate a recruitment process for the position of Director General following the term expiry of former Director General Emile Nguza Arao on 22 nd April 2026.
7. The 1 st Petitioner/ Applicant asserts that the Board lacks the mandatory statutory quorum of six members required under Section 17 of the Civil Aviation Act to lawfully conduct business, as it currently consists of only five members. That this composition defect stems from the expiry of the three-year terms of five independent members on 20 th April 2026 and the alleged unprocedural appointment of Ann Too, the 4 th Respondent without an open, competitive recruitment process as required under the Civil Aviation Act.
8. The 1 st Applicant highlights alleged procedural irregularities in the recruitment advertisement, specifically noting that directing applicants to send submissions straight to the Board Chairperson’s email compromises transparency and fairness. That this practice contrasts with previous recruitment protocols such as the February 2022 process, which utilized an independent recruitment secretariat.
9. The deponent further states that the job advertisement fails to adhere to Clause 2.2(c) of the KCAA Career Guidelines (2025) by treating a mandatory four-week leadership course as merely an "added advantage" and completely omitting the required computer proficiency qualification.
10. The Petitioners/ Applicants are apprehensive that these deliberate omissions and the allegedly opaque handling of the recruitment process are intended to favour a specific candidate, thereby violating constitutional principles of good governance, fair competition, public interest and transparency as set out in Articles 10 and 232 of the Constitution , as well as the Kenya Civil Aviation Authority Human Resource Manual and Mwongozo Governance Codes.
11. Citing concerns over operational standard deterioration and governance failures within a critical state corporation responsible for air safety, the 1 st Petitioner/Applicant prays for Court intervention to halt the recruitment process and to declare it null and void.
12. Opposing the Notice of Motion and the Petition, the 1 st Respondent the Kenya Civil Aviation Authority filed a Replying Affidavit dated 10 th June 2026 , sworn by Nicholas Bodo, the Acting Director General of the Kenya Civil Aviation Authority (KCAA).
13. Mr Bodo deposes that the Petitioners lack proper standing and are abusing the court process out of personal dissatisfaction, noting that the 1 st Petitioner is a dismissed former employee and the second is a former Board member whose appointment was revoked.
14. On the issue of Board quorum, Mr. Bodo explains that the decision to advertise the Director General position was lawfully made on 17 th April 2026, when the Board was fully constituted and possessed a valid quorum. That while the terms of four independent Board members expired shortly thereafter on 20 th April 2026, Mr. Bodo deposes that the recruitment process has since been placed in abeyance, with no longlisting or shortlisting conducted, pending the appointment of new independent members to restore full quorum.
15. Addressing the procedural concerns raised by the Petitioners, the deponent defends the use of the designated application email: chairman1@kcaa.or.ke , stating that it is a standard practice across government agencies, governed by secure system logs and separate from the Board Chairperson’s personal work email. He further refutes claims regarding improper job requirements, explaining that making a four-week leadership course an "added advantage" rather than a mandatory requirement aligns directly with Section 19(4) of the Civil Aviation Act .
16. Consequently, the deponent contends that the Petition is premature, speculative and driven by extraneous motives to disrupt a lawful process, and he urges the Court to dismiss the Petition with costs.
17. The 2 nd and 3 rd Respondents filed joint Grounds of Opposition filed on 9 th June 2026, opposing the Notice of Motion Application and the Petition. Represented by Deputy Chief State Counsel Mr. S.O. Kaumba, the Attorney-General asserts that the Petitioners’ case rests on a flawed factual foundation and speculative assumptions devoid of cogent evidence, failing to establish a prima facie case.
18. It is contended that the recruitment advertisement was legitimately issued when the Board of the Kenya Civil Aviation Authority (KCAA) possessed a proper quorum. Further, that, due to an intervening quorum defect following the expiration of independent Board members’ terms, the recruitment process has been halted and kept in abeyance, to be resumed only upon attaining a full quorum under the principles of perpetual succession and governance continuity.
19. The 2 nd and 3 rd respondents in addressing the procedural and qualification complaints raised by the Petitioners, states that treating a leadership course as an ‘added advantage’ rather than a mandatory requirement is fully intra-vires Section 13(3) of the Civil Aviation Act , which strictly defines mandatory qualifications for the position.
20. Additionally, that using a dedicated, accessible email portal managed by the Board Chairman for receiving applications is defended as an accountable, transparent mechanism designed to prevent unauthorized interference and to promote national inclusivity through online accessibility.
21. Relying on the locus classicus on the threshold for grant of conservatory orders, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, the 2 nd and 3 rd Respondents stress the presumption of regularity in public agency actions and urge that public interest favours sustaining governance processes at an interlocutory stage. That because the Petitioners face no risk of irreversible harm or a nugatory suit as any eventual irregular appointment could simply be nullified by the court, the Attorney-General prays for the Petition and Application to be dismissed with costs.
22. In a rejoinder, the Petitioners filed a further Affidavit sworn on 17 th June 2026 by the 1 st Petitioner, Humphrey Bulimu Agamu, in which he reiterates that both Applicants possess valid locus standi under Article 258 of the Constitution to challenge the Kenya Civil Aviation Authority (KCAA) recruitment process in the public interest.
23. Rebutting claims made by the 1 st and 3 rd Respondents, the 1 st Petitioner refutes allegations regarding the 2 nd Petitioner’s background, annexing Gazette Notices from April 2015 and June 2018 to confirm that Mr. Mwanzia served two full three-year terms on the Board rather than having his term unprocedurally revoked as alleged.
24. The deponent further reiterates that the Respondents acted with improper haste and emphasizes that despite alleging the decision to recruit was made during a quorate meeting on 17 th April 2026, the Respondents failed to produce foundational evidentiary records such as the Board minutes, resolutions, meeting agenda or attendance logs.
25. The Petitioners further challenge the validity of the recruitment process, contending that because the Board lost its statutory quorum, it lacked the legal authority to initiate, advertise or receive Applications for the Director General’s post.
26. The Petitioners contest the legality of the 4 th Respondent’s appointment, asserting that it lacked competitive recruitment and that her term should have expired in April 2026. Additionally, they contend that the Respondents’ reliance on the presumption of regularity , is a rebuttable presumption once procedural impropriety is demonstrated.
27. The Petitioners maintain that using the Board Chairman’s email address for candidate submissions undermines transparency and governance principles. They expound that the KCAA Career Guidelines (2025) must be strictly followed alongside the Civil Aviation Act. They warn that denying interlocutory conservatory orders could lead to severe financial waste and reputational damage if the recruitment is later voided. They urge the Court to halt the process pending a final determination of the Petition.
28. The parties took directions to canvas the Notice of Motion application by way of written submissions.
Submissions
29. The petitioners’/Applicants’ Submissions are dated 17 th June 2026 in which Counsel isolated two issues for determination:
i. Whether the Petitioners have the locus standi to institute this petition and
ii. Whether the Petitioners merit the Conservatory Orders sought.
30. On the first issue, the petitioners/ Applicants argued that they possess locus standi as public-spirited citizens under Article 258 of the Constitution , citing Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others (2013 & 2014) eKLR and they reject claims that their status as former employees or Board members disqualifies them from instituting the petition.
31. The Petitions submitted that a prima facie case under Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others (2003) eKLR, had been established, noting the Respondents failed to adduce evidence such as Board minutes or resolutions showing that the recruitment was approved prior to losing quorum on 20 th April 2026, or that operations were officially halted.
32. It is submitted that the 4 th Respondent’s continued service on the 1 st Respondent’s Board of Directors is unlawful, arguing that her term should have expired on 20 th April 2026, pursuant to Section 13(5) and 13(6) of the Civil Aviation Act, 2013 .
33. The Petitioner further submitted that after Dr. Annette Mbogo resigned, the 2 nd Respondent bypassed Article 232(1)(f) of the Constitution and Section 13(6) of the Act by appointing the 4 th Respondent without an open, merit-based and competitive recruitment process or public advertisement and erroneously granted her an extended term rather than having her serve the remainder of Dr. Mbogo’s term ending 20 th April 2026.
34. Further submissions are that requiring applications to be sent to a personal Board chairman email address- chairman1@kcaa.or.ke , violates Articles 10 and 273 transparency principles and lowering job qualifications set in Clause 2.29(c) of the KCAA Career Guidelines, 2025 by making leadership courses an "added advantage" rather than mandatory.
35. It was additionally submitted that the 4 th Respondent failed to respond to the Petition, while the 1 st Respondent only offered a mere denial without evidence of a competitive recruitment hence, these unrefuted violations establish a prima facie case with a likelihood of success.
36. The Petitioners further submitted that Section 19 (4) of the Civil Aviation Act 2013 sets out the requirements for a Director General, asserting that the list is not exhaustive but is drafted in abstract terms to be a guiding principle in the formulation of Career Guidelines for KCAA. That unless a resolution of the Board is passed, the Board must strictly adhere to these guidelines, which the Board is now failing to do.
37. Evaluating the principles for conservatory orders as established in the Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (2014) eKLR case, the Petitioners/ Applicants submit, on the second threshold for grant of conservatory orders, that the Petition would be rendered nugatory if an appointee assumes office or if the 4 th Respondent continues participating in Board decisions, which could not be easily unwound despite Paragraph 6 of the First Schedule to the Civil Aviation Act . They argue that public interest lies in maintaining legal order and avoiding costly invalid Board actions, noting that an Acting Director General (Mr. Nicholas Bodo), is currently in office to preserve operational continuity. They urge the Court to grant the conservatory orders sought in the Notice of Motion.
38. The 1 st Respondent’s Submissions are dated 23 rd June 2026 in which Counsel isolates three issues for determination as follows:
i. Whether the Applicants/Petitioners abused Locus Standi enshrined under Article 22 or 258 of the Constitution of Kenya, 2010;
ii. Whether the 1 st Respondent’s Board was properly constituted as at the time the decision to advertise was made and whether due process was followed; and
iii. Whether conservatory orders should issue against the 1 st Respondent as well as prayers sought in the Petition.
39. Counsel argues that the Applicants are abusing the expanded locus standi under Articles 22 and 258 of the Constitution and that they are operating out of personal dissatisfaction over their past separation from the entity. Relying on the case of John Wekasa Khaoya v. Attorney-General (2012) eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance (2014) eKLR, the 1 st Respondent submits that public interest litigation must be brought in good faith and without personal gain. Reliance was further placed on Communications Commission of Kenya v. Royal Media Services (2014) eKLR in which the Court is said to have stated that petitioners are obligated to prove a clear link between their grievance and constitutional violations.
40. Counsel for the 1 st Respondent submits that the decision to recruit the Director General was made on 17 th April 2026, with approval from the 2 nd Respondent on 1 st April 2026, when the Board was fully quorate prior to four members’ terms expiring on 20 th April 2026. Counsel maintains that the process was voluntarily halted suo motu pending Board reconstitution, thereby rendering conservatory orders moot and academic, as was stated in Co-operative Bank of Kenya Ltd v. Banking Insurance & Finance Union (2015) eKLR .
41. Regarding the job qualifications, the 1 st Respondent invokes statutory supremacy, contending that Section 19(4) of the Civil Aviation Act sets out mandatory qualifications and that therefore, requiring additional mandatory terms from internal career guidelines would be ultra vires. Reliance was placed on Republic vs. Kenya Revenue Authority Exparte Yaya Towers Limited (2008) eKLR and Westminster Corporation v. London and Northwestern Rail Co. (1905) eKLR .
42. The 1 st Respondent denies that there is any irregularities regarding chairman1@kcaa.or.ke e-mail, stating that it is an official institutional portal created solely for recruitment purposes.
43. Addressing the 4 th Respondent’s position, Counsel for the 1 st respondent submits that she was lawfully appointed under Section 13 on 24 th October 2025, for a three-year term, and that in any event, Paragraph 6 of the First Schedule to the Civil Aviation Act protects Board proceedings from invalidation due to defects or vacancies.
44. Relying on several authorities in Kyamue Company Limited v. KeNHA (2023) eKLR, Gatirau Peter Munya (2014) eKLR, Wilson Kaberia Nkunja v. Magistrates and Judges Vetting Board (2016) eKLR, Mrao Ltd (2003) eKLR, Trusted Society of Human Rights Alliance v. KRA (2025) eKLR, Sections 107 and 109 of the Evidence Act, Susan Mumbi v. Kefala Grebedhin (1993) eKLR, Community Advocacy and Awareness Trust v. AG (2012) eKLR, and Jayne Mati v. AG (2011) eKLR , the 1 st Respondent submits that the Petitioners/ the Applicants failed to establish a prima facie case, irretrievable harm, or grounds for judicial interference in administrative functions. Counsel for the 1 st Respondent urges the Court to dismiss the Application and lift the interim conservatory orders issued on 3 rd June 2026.
45. The 2 nd and 3 rd Respondents filed their joint Submissions dated 23 rd June 2026 through the Attorney General. They ground the framework for interlocutory relief on the well-known case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others (2014) eKLR , and submit that conservatory orders require evaluating an arguable case, whether the petition would be rendered nugatory and the overarching public interest.
46. Based on Mrao Ltd v. First American Bank of Kenya Ltd (2003) eKLR and Gachagua & 40 others v. Speaker, National Assembly (2024) eKLR , the AG contends the Applicants failed to demonstrate a prima facie case because their claims rest on incorrect factual assumptions rather than cogent evidence.
47. The AG highlights that the advertisement was issued on 19 th April 2025 prior to the Board losing quorum and the recruitment process has since been properly halted until the Board is reconstituted pursuant to the principle of perpetual succession.
48. The 2 nd and 3 rd Respondents submit that making a leadership course an ‘added advantage’ is entirely intra vires Section 19(4) of the Civil Aviation Act , which exclusively dictates the statutory mandatory requirements for the Director General. Additionally, it is submitted that using a dedicated chairman email address ensures leadership, accountability and nationwide inclusivity.
49. It is submitted that under Sections 107, 109, and 112 of the Evidence Act and as was held in Ogolla v. Registrar of Political Parties (2026) eKLR and Oyugi v. Attorney General (2019) eKLR , the burden of proof rests on the Petitioners to substantiate allegations with clear evidence rather than speculation.
50. Addressing public interest question and relying on Gachagua v. Speaker, National Assembly (2024) eKLR , the 2 nd and 3 rd Respondents invoke the presumption of regularity of governmental actions . Citing Section 20 of the Civil Aviation Act , they Details the critical operational, safety oversight, airspace and statutory responsibilities of the Director General, arguing that public interest heavily favours sustaining essential governance processes rather than stalling recruitment.
51. Finally, the 2 nd and 3 rd Respondents submit that the petition will not be rendered nugatory without interim relief, as any ultimate appointment found to be irregular can readily be declared null and void by the court upon a full trial.
52. The 4 th respondent neither filed a response nor submissions.
Analysis and Determination
53. I have considered the application, the responses thereto and the written submissions by the participating parties. From the material placed before this Court, the only issue for determination is whether the Petitioners’ Notice of Motion is merited. To do so, the Court will address the following questions:
(i) whether this Court has jurisdiction and whether the Petitioners have locus standi to bring the petition;
(ii) Whether the Petitioners have met the threshold for the granting of conservatory orders?
i. whether this Court has jurisdiction
54. Jurisdiction is everything. A court of law cannot act without first satisfying itself that it is properly seized of jurisdiction. Without jurisdiction, proceedings or orders are rendered in vain. The Court is empowered to interrogate and determine jurisdiction not only when raised by parties, but suo motu , since jurisdiction is a fundamental question that goes to the root of a court’s competence. As established in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1 , jurisdiction is everything. Without it, a court has no power to make one more step and must ‘down its tools’ the moment it finds that it lacks jurisdiction. Accordingly, even where parties have not raised the issue, the Court has a duty to satisfy itself that jurisdiction exists before proceeding to the merits.
55. This Court’s jurisdiction is captured under Article 165 of the Constitution . Article 165 (3) (b) which expressly vests the Court with authority to hear and determine any question as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened.
56. In addition, Article 165 (3) (d) empowers the High Court to interpret the Constitution, including, determining whether any law or act done under its authority is inconsistent with or contravenes the Constitution. This jurisdiction is original, unlimited and cannot be ousted by statute or administrative mechanism.
57. Accordingly, whenever allegations of constitutional violations are properly brought before it, the High Court is dutybound to pronounce itself, ensuring the supremacy of the Constitution and the protection of fundamental rights. The question for this Court is whether the dispute centres on an employment question which is specially reserved for the Employment and Labour Relations Court under Article 162 or not, in light of the Supreme Court’s recent binding pronouncement.
58. In Moi Teaching and Referral Hospital (MTRH) & 3 others v Dr. Magare Gikenyi & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment), the Supreme Court settled that the ELRC’s jurisdiction extends to pre-employment procedures and processes, such as job advertisements, shortlisting and candidate selection, when brought by candidates, employees, or prospective employees. The Court held that: -
“[70] Based on our own interpretation and application of Articles 162 (2)(a) and 165(3)(b) of the Constitution, read together with the provisions of the relevant statutes dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC. The jurisdiction of the ELRC therefore goes beyond resolving employer-employee disputes. The list in Section 12 of ELRC is not exhaustive. Apart from listing persons, entities, and offices that by definition do not qualify as employees or employers, the Act, in explicit terms, extends the jurisdiction of the ELRC as may be conferred by any other law in respect of employment and labour relations. The three written laws, the Employment Act, the Labour Relations Act, and the Labour Institutions Act, create additional categories of persons and offices who have access to the court but who are neither employees nor employers. They provide in plain language that this category of persons and offices can sue or be sued before the ELRC. The statutes further provide that pre-employment grievances involving those categories are justiciable in the ELRC. Any dispute beyond those explicitly stated class must be instituted in the High Court.
71……
[72] As we conclude on this aspect of the appeal, we restate our determination
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E331 OF 2026
IN THE MATTER OF: ARTICLES 10, 22, 23, 73, AND 232 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: CIVIL AVIATION ACT CAP 394 OF LAWS OF KENYA
AND
IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT, NO 4. OF 2015
AND
IN THE MATTER OF: KCAA CAREER GUIDELINES, 2025
AND
IN THE MATTER OF: PUBLIC SERVICE MANAGEMENT ACT
AND
IN THE MATTER OF: KCAA HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL
-BETWEEN-
HUMPHREY BULIMU AGAMU ……..... 1 ST PETITIONER/APPLICANT
CHARLES MUTYETU MWANZIA ……. 2 ND PETITIONER/APPLICANT
AND
KENYA CIVIL AVIATION AUTHORITY ..................... 1 ST RESPONDENT
CABINET SECRETARY FOR
ROADS AND TRANSPORT…….....................................2 ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL ………3 RD RESPONDENT
ANNE TOO ....………………...………..………...……... 4 TH RESPONDENT
RULNG ON CONSERVATORY ORDERS
Introduction
1. This Ruling determines the Notice of Motion Application dated 27 th May 2026 seeking inter alia, conservatory orders to stop the impugned recruitment process for the position of Director General of the Kenya Civil aviation Authority, unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act. The Petitioners/Applicants had also previously sought interim ex-parte orders to halt the process and the Court did grant interim orders staying the recruitment process.
2. At the commencement of the Petition and application for conservatory orders brought under certificate of urgency, this Court declined to grant ex-parte reliefs and instead directed the Petitioners to file and serve the Respondents with the Petition and the Notice of Motion and further invited the parties for inter-partes directions on 2 nd June 2026. On the latter date, The Petitioners’ Counsel urged the Court to grant an interim relief owing to the urgency of the matter and arguing that should the 1 st Respondent not be restrained from continuing with recruitment of the Director General, they will continue with the process and conclude it.
3. In an interlocutory interim Ruling dated 3 rd June 2026 , this Court granted temporary conservatory orders staying the already commenced process of recruitment of the Director General of the Kenya Civil Aviation Authority by the 1 st Respondent’s Board until the application for conservatory orders is heard and determined.
The Petition and Application
4. The Petition dated 27 th May 2026 seeks several orders/reliefs namely:
(a) A declaration that the resolution of the 1 st Respondent’s Board of Directors to advertise, commence and undertake the competitive recruitment process for the position of Director-General of the 1 st Respondent was unlawful, unconstitutional, null and void for want of the mandatory statutory quorum prescribed under Section 17(2) of the Civil Aviation Act.
(b) A declaration that the continued participation and/or holding of office by the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors after 20 th April 2026 is unlawful, illegal and contrary to Section 13(6) of the Civil Aviation Act.
(c) A permanent injunction restraining the 1 st Respondent, whether by itself, its Board of Directors, officers, servants, agents or whosoever acting under its authority, from proceeding with, continuing, concluding or making any appointment pursuant to the impugned recruitment process for the position of Director-General unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act.
(d) A permanent injunction restraining the Board of Directors of the 1 st Respondent from conducting the business and affairs of the 1 st Respondent unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act.
(e) An order compelling the 2 nd Respondent to undertake and/or ensure compliance with Section 13(6) of the Civil Aviation Act by filling the existing vacancies in the 1 st Respondent’s Board of Directors through an open, transparent and competitive recruitment process in accordance with the Constitution and the law.
(f) An order directing that any future recruitment process for the position of Director-General of the 1 st Respondent be conducted strictly in accordance with the Constitution, the Civil Aviation Act, the Kenya Civil Aviation Authority Human Resource Policies and Procedures Manual and the Kenya Civil Aviation Authority Career Guidelines, 2025.
(g) Costs of this Petition together with interest thereon.
(h) Any other or further relief that this Honourable Court may deem just and fit to grant in the circumstances.
5. Concurrent with the Petition, the Petitioners filed a Notice of Motion dated evenly with the Petition and supported by the 1 st Petitioner’s Affidavit sworn on the 27 th May, 2026, seeking conservatory orders pending hearing and determination of the Petition as well as interim reliefs to be granted ex-part e in the first instance. They prayed for the following Orders: -
(1 THAT this Application be certified urgent and heard ex-parte in the first instance and on a priority basis.
(2 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of Director-General.
(3 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of Director-General.
(4 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to restrain the 1 st Respondent’s Board from transacting the business and affairs of the 1 st Respondent before it is properly constituted.
(5 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to restrain the 1 st Respondent’s Board from transacting the business and affairs of the 1 st Respondent before it is properly constituted.
(6 THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors on the ground that her term lapsed on 20 th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace.
(7 THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4 th Respondent as a member of the 1 st Respondent’s Board of Directors on the ground that her term lapsed on 20 th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace.
(8 THAT this court be pleased to fast track the hearing and determination of the Claim.
6. The Application is predicated on the grounds on its face and the 1 st Petitioner’s Supporting Affidavit sworn on 27 th May 2026 in which he challenges on his own behalf and of the 2 nd Applicant, the Kenya Civil Aviation Authority (KCAA) Board of Directors’ decision to initiate a recruitment process for the position of Director General following the term expiry of former Director General Emile Nguza Arao on 22 nd April 2026.
7. The 1 st Petitioner/ Applicant asserts that the Board lacks the mandatory statutory quorum of six members required under Section 17 of the Civil Aviation Act to lawfully conduct business, as it currently consists of only five members. That this composition defect stems from the expiry of the three-year terms of five independent members on 20 th April 2026 and the alleged unprocedural appointment of Ann Too, the 4 th Respondent without an open, competitive recruitment process as required under the Civil Aviation Act.
8. The 1 st Applicant highlights alleged procedural irregularities in the recruitment advertisement, specifically noting that directing applicants to send submissions straight to the Board Chairperson’s email compromises transparency and fairness. That this practice contrasts with previous recruitment protocols such as the February 2022 process, which utilized an independent recruitment secretariat.
9. The deponent further states that the job advertisement fails to adhere to Clause 2.2(c) of the KCAA Career Guidelines (2025) by treating a mandatory four-week leadership course as merely an "added advantage" and completely omitting the required computer proficiency qualification.
10. The Petitioners/ Applicants are apprehensive that these deliberate omissions and the allegedly opaque handling of the recruitment process are intended to favour a specific candidate, thereby violating constitutional principles of good governance, fair competition, public interest and transparency as set out in Articles 10 and 232 of the Constitution , as well as the Kenya Civil Aviation Authority Human Resource Manual and Mwongozo Governance Codes.
11. Citing concerns over operational standard deterioration and governance failures within a critical state corporation responsible for air safety, the 1 st Petitioner/Applicant prays for Court intervention to halt the recruitment process and to declare it null and void.
12. Opposing the Notice of Motion and the Petition, the 1 st Respondent the Kenya Civil Aviation Authority filed a Replying Affidavit dated 10 th June 2026 , sworn by Nicholas Bodo, the Acting Director General of the Kenya Civil Aviation Authority (KCAA).
13. Mr Bodo deposes that the Petitioners lack proper standing and are abusing the court process out of personal dissatisfaction, noting that the 1 st Petitioner is a dismissed former employee and the second is a former Board member whose appointment was revoked.
14. On the issue of Board quorum, Mr. Bodo explains that the decision to advertise the Director General position was lawfully made on 17 th April 2026, when the Board was fully constituted and possessed a valid quorum. That while the terms of four independent Board members expired shortly thereafter on 20 th April 2026, Mr. Bodo deposes that the recruitment process has since been placed in abeyance, with no longlisting or shortlisting conducted, pending the appointment of new independent members to restore full quorum.
15. Addressing the procedural concerns raised by the Petitioners, the deponent defends the use of the designated application email: chairman1@kcaa.or.ke , stating that it is a standard practice across government agencies, governed by secure system logs and separate from the Board Chairperson’s personal work email. He further refutes claims regarding improper job requirements, explaining that making a four-week leadership course an "added advantage" rather than a mandatory requirement aligns directly with Section 19(4) of the Civil Aviation Act .
16. Consequently, the deponent contends that the Petition is premature, speculative and driven by extraneous motives to disrupt a lawful process, and he urges the Court to dismiss the Petition with costs.
17. The 2 nd and 3 rd Respondents filed joint Grounds of Opposition filed on 9 th June 2026, opposing the Notice of Motion Application and the Petition. Represented by Deputy Chief State Counsel Mr. S.O. Kaumba, the Attorney-General asserts that the Petitioners’ case rests on a flawed factual foundation and speculative assumptions devoid of cogent evidence, failing to establish a prima facie case.
18. It is contended that the recruitment advertisement was legitimately issued when the Board of the Kenya Civil Aviation Authority (KCAA) possessed a proper quorum. Further, that, due to an intervening quorum defect following the expiration of independent Board members’ terms, the recruitment process has been halted and kept in abeyance, to be resumed only upon attaining a full quorum under the principles of perpetual succession and governance continuity.
19. The 2 nd and 3 rd respondents in addressing the procedural and qualification complaints raised by the Petitioners, states that treating a leadership course as an ‘added advantage’ rather than a mandatory requirement is fully intra-vires Section 13(3) of the Civil Aviation Act , which strictly defines mandatory qualifications for the position.
20. Additionally, that using a dedicated, accessible email portal managed by the Board Chairman for receiving applications is defended as an accountable, transparent mechanism designed to prevent unauthorized interference and to promote national inclusivity through online accessibility.
21. Relying on the locus classicus on the threshold for grant of conservatory orders, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, the 2 nd and 3 rd Respondents stress the presumption of regularity in public agency actions and urge that public interest favours sustaining governance processes at an interlocutory stage. That because the Petitioners face no risk of irreversible harm or a nugatory suit as any eventual irregular appointment could simply be nullified by the court, the Attorney-General prays for the Petition and Application to be dismissed with costs.
22. In a rejoinder, the Petitioners filed a further Affidavit sworn on 17 th June 2026 by the 1 st Petitioner, Humphrey Bulimu Agamu, in which he reiterates that both Applicants possess valid locus standi under Article 258 of the Constitution to challenge the Kenya Civil Aviation Authority (KCAA) recruitment process in the public interest.
23. Rebutting claims made by the 1 st and 3 rd Respondents, the 1 st Petitioner refutes allegations regarding the 2 nd Petitioner’s background, annexing Gazette Notices from April 2015 and June 2018 to confirm that Mr. Mwanzia served two full three-year terms on the Board rather than having his term unprocedurally revoked as alleged.
24. The deponent further reiterates that the Respondents acted with improper haste and emphasizes that despite alleging the decision to recruit was made during a quorate meeting on 17 th April 2026, the Respondents failed to produce foundational evidentiary records such as the Board minutes, resolutions, meeting agenda or attendance logs.
25. The Petitioners further challenge the validity of the recruitment process, contending that because the Board lost its statutory quorum, it lacked the legal authority to initiate, advertise or receive Applications for the Director General’s post.
26. The Petitioners contest the legality of the 4 th Respondent’s appointment, asserting that it lacked competitive recruitment and that her term should have expired in April 2026. Additionally, they contend that the Respondents’ reliance on the presumption of regularity , is a rebuttable presumption once procedural impropriety is demonstrated.
27. The Petitioners maintain that using the Board Chairman’s email address for candidate submissions undermines transparency and governance principles. They expound that the KCAA Career Guidelines (2025) must be strictly followed alongside the Civil Aviation Act. They warn that denying interlocutory conservatory orders could lead to severe financial waste and reputational damage if the recruitment is later voided. They urge the Court to halt the process pending a final determination of the Petition.
28. The parties took directions to canvas the Notice of Motion application by way of written submissions.
Submissions
29. The petitioners’/Applicants’ Submissions are dated 17 th June 2026 in which Counsel isolated two issues for determination:
i. Whether the Petitioners have the locus standi to institute this petition and
ii. Whether the Petitioners merit the Conservatory Orders sought.
30. On the first issue, the petitioners/ Applicants argued that they possess locus standi as public-spirited citizens under Article 258 of the Constitution , citing Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others (2013 & 2014) eKLR and they reject claims that their status as former employees or Board members disqualifies them from instituting the petition.
31. The Petitions submitted that a prima facie case under Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others (2003) eKLR, had been established, noting the Respondents failed to adduce evidence such as Board minutes or resolutions showing that the recruitment was approved prior to losing quorum on 20 th April 2026, or that operations were officially halted.
32. It is submitted that the 4 th Respondent’s continued service on the 1 st Respondent’s Board of Directors is unlawful, arguing that her term should have expired on 20 th April 2026, pursuant to Section 13(5) and 13(6) of the Civil Aviation Act, 2013 .
33. The Petitioner further submitted that after Dr. Annette Mbogo resigned, the 2 nd Respondent bypassed Article 232(1)(f) of the Constitution and Section 13(6) of the Act by appointing the 4 th Respondent without an open, merit-based and competitive recruitment process or public advertisement and erroneously granted her an extended term rather than having her serve the remainder of Dr. Mbogo’s term ending 20 th April 2026.
34. Further submissions are that requiring applications to be sent to a personal Board chairman email address- chairman1@kcaa.or.ke , violates Articles 10 and 273 transparency principles and lowering job qualifications set in Clause 2.29(c) of the KCAA Career Guidelines, 2025 by making leadership courses an "added advantage" rather than mandatory.
35. It was additionally submitted that the 4 th Respondent failed to respond to the Petition, while the 1 st Respondent only offered a mere denial without evidence of a competitive recruitment hence, these unrefuted violations establish a prima facie case with a likelihood of success.
36. The Petitioners further submitted that Section 19 (4) of the Civil Aviation Act 2013 sets out the requirements for a Director General, asserting that the list is not exhaustive but is drafted in abstract terms to be a guiding principle in the formulation of Career Guidelines for KCAA. That unless a resolution of the Board is passed, the Board must strictly adhere to these guidelines, which the Board is now failing to do.
37. Evaluating the principles for conservatory orders as established in the Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (2014) eKLR case, the Petitioners/ Applicants submit, on the second threshold for grant of conservatory orders, that the Petition would be rendered nugatory if an appointee assumes office or if the 4 th Respondent continues participating in Board decisions, which could not be easily unwound despite Paragraph 6 of the First Schedule to the Civil Aviation Act . They argue that public interest lies in maintaining legal order and avoiding costly invalid Board actions, noting that an Acting Director General (Mr. Nicholas Bodo), is currently in office to preserve operational continuity. They urge the Court to grant the conservatory orders sought in the Notice of Motion.
38. The 1 st Respondent’s Submissions are dated 23 rd June 2026 in which Counsel isolates three issues for determination as follows:
i. Whether the Applicants/Petitioners abused Locus Standi enshrined under Article 22 or 258 of the Constitution of Kenya, 2010;
ii. Whether the 1 st Respondent’s Board was properly constituted as at the time the decision to advertise was made and whether due process was followed; and
iii. Whether conservatory orders should issue against the 1 st Respondent as well as prayers sought in the Petition.
39. Counsel argues that the Applicants are abusing the expanded locus standi under Articles 22 and 258 of the Constitution and that they are operating out of personal dissatisfaction over their past separation from the entity. Relying on the case of John Wekasa Khaoya v. Attorney-General (2012) eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance (2014) eKLR, the 1 st Respondent submits that public interest litigation must be brought in good faith and without personal gain. Reliance was further placed on Communications Commission of Kenya v. Royal Media Services (2014) eKLR in which the Court is said to have stated that petitioners are obligated to prove a clear link between their grievance and constitutional violations.
40. Counsel for the 1 st Respondent submits that the decision to recruit the Director General was made on 17 th April 2026, with approval from the 2 nd Respondent on 1 st April 2026, when the Board was fully quorate prior to four members’ terms expiring on 20 th April 2026. Counsel maintains that the process was voluntarily halted suo motu pending Board reconstitution, thereby rendering conservatory orders moot and academic, as was stated in Co-operative Bank of Kenya Ltd v. Banking Insurance & Finance Union (2015) eKLR .
41. Regarding the job qualifications, the 1 st Respondent invokes statutory supremacy, contending that Section 19(4) of the Civil Aviation Act sets out mandatory qualifications and that therefore, requiring additional mandatory terms from internal career guidelines would be ultra vires. Reliance was placed on Republic vs. Kenya Revenue Authority Exparte Yaya Towers Limited (2008) eKLR and Westminster Corporation v. London and Northwestern Rail Co. (1905) eKLR .
42. The 1 st Respondent denies that there is any irregularities regarding chairman1@kcaa.or.ke e-mail, stating that it is an official institutional portal created solely for recruitment purposes.
43. Addressing the 4 th Respondent’s position, Counsel for the 1 st respondent submits that she was lawfully appointed under Section 13 on 24 th October 2025, for a three-year term, and that in any event, Paragraph 6 of the First Schedule to the Civil Aviation Act protects Board proceedings from invalidation due to defects or vacancies.
44. Relying on several authorities in Kyamue Company Limited v. KeNHA (2023) eKLR, Gatirau Peter Munya (2014) eKLR, Wilson Kaberia Nkunja v. Magistrates and Judges Vetting Board (2016) eKLR, Mrao Ltd (2003) eKLR, Trusted Society of Human Rights Alliance v. KRA (2025) eKLR, Sections 107 and 109 of the Evidence Act, Susan Mumbi v. Kefala Grebedhin (1993) eKLR, Community Advocacy and Awareness Trust v. AG (2012) eKLR, and Jayne Mati v. AG (2011) eKLR , the 1 st Respondent submits that the Petitioners/ the Applicants failed to establish a prima facie case, irretrievable harm, or grounds for judicial interference in administrative functions. Counsel for the 1 st Respondent urges the Court to dismiss the Application and lift the interim conservatory orders issued on 3 rd June 2026.
45. The 2 nd and 3 rd Respondents filed their joint Submissions dated 23 rd June 2026 through the Attorney General. They ground the framework for interlocutory relief on the well-known case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others (2014) eKLR , and submit that conservatory orders require evaluating an arguable case, whether the petition would be rendered nugatory and the overarching public interest.
46. Based on Mrao Ltd v. First American Bank of Kenya Ltd (2003) eKLR and Gachagua & 40 others v. Speaker, National Assembly (2024) eKLR , the AG contends the Applicants failed to demonstrate a prima facie case because their claims rest on incorrect factual assumptions rather than cogent evidence.
47. The AG highlights that the advertisement was issued on 19 th April 2025 prior to the Board losing quorum and the recruitment process has since been properly halted until the Board is reconstituted pursuant to the principle of perpetual succession.
48. The 2 nd and 3 rd Respondents submit that making a leadership course an ‘added advantage’ is entirely intra vires Section 19(4) of the Civil Aviation Act , which exclusively dictates the statutory mandatory requirements for the Director General. Additionally, it is submitted that using a dedicated chairman email address ensures leadership, accountability and nationwide inclusivity.
49. It is submitted that under Sections 107, 109, and 112 of the Evidence Act and as was held in Ogolla v. Registrar of Political Parties (2026) eKLR and Oyugi v. Attorney General (2019) eKLR , the burden of proof rests on the Petitioners to substantiate allegations with clear evidence rather than speculation.
50. Addressing public interest question and relying on Gachagua v. Speaker, National Assembly (2024) eKLR , the 2 nd and 3 rd Respondents invoke the presumption of regularity of governmental actions . Citing Section 20 of the Civil Aviation Act , they Details the critical operational, safety oversight, airspace and statutory responsibilities of the Director General, arguing that public interest heavily favours sustaining essential governance processes rather than stalling recruitment.
51. Finally, the 2 nd and 3 rd Respondents submit that the petition will not be rendered nugatory without interim relief, as any ultimate appointment found to be irregular can readily be declared null and void by the court upon a full trial.
52. The 4 th respondent neither filed a response nor submissions.
Analysis and Determination
53. I have considered the application, the responses thereto and the written submissions by the participating parties. From the material placed before this Court, the only issue for determination is whether the Petitioners’ Notice of Motion is merited. To do so, the Court will address the following questions:
(i) whether this Court has jurisdiction and whether the Petitioners have locus standi to bring the petition;
(ii) Whether the Petitioners have met the threshold for the granting of conservatory orders?
i. whether this Court has jurisdiction
54. Jurisdiction is everything. A court of law cannot act without first satisfying itself that it is properly seized of jurisdiction. Without jurisdiction, proceedings or orders are rendered in vain. The Court is empowered to interrogate and determine jurisdiction not only when raised by parties, but suo motu , since jurisdiction is a fundamental question that goes to the root of a court’s competence. As established in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1 , jurisdiction is everything. Without it, a court has no power to make one more step and must ‘down its tools’ the moment it finds that it lacks jurisdiction. Accordingly, even where parties have not raised the issue, the Court has a duty to satisfy itself that jurisdiction exists before proceeding to the merits.
55. This Court’s jurisdiction is captured under Article 165 of the Constitution . Article 165 (3) (b) which expressly vests the Court with authority to hear and determine any question as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened.
56. In addition, Article 165 (3) (d) empowers the High Court to interpret the Constitution, including, determining whether any law or act done under its authority is inconsistent with or contravenes the Constitution. This jurisdiction is original, unlimited and cannot be ousted by statute or administrative mechanism.
57. Accordingly, whenever allegations of constitutional violations are properly brought before it, the High Court is dutybound to pronounce itself, ensuring the supremacy of the Constitution and the protection of fundamental rights. The question for this Court is whether the dispute centres on an employment question which is specially reserved for the Employment and Labour Relations Court under Article 162 or not, in light of the Supreme Court’s recent binding pronouncement.
58. In Moi Teaching and Referral Hospital (MTRH) & 3 others v Dr. Magare Gikenyi & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment), the Supreme Court settled that the ELRC’s jurisdiction extends to pre-employment procedures and processes, such as job advertisements, shortlisting and candidate selection, when brought by candidates, employees, or prospective employees. The Court held that: -
“[70] Based on our own interpretation and application of Articles 162 (2)(a) and 165(3)(b) of the Constitution, read together with the provisions of the relevant statutes dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC. The jurisdiction of the ELRC therefore goes beyond resolving employer-employee disputes. The list in Section 12 of ELRC is not exhaustive. Apart from listing persons, entities, and offices that by definition do not qualify as employees or employers, the Act, in explicit terms, extends the jurisdiction of the ELRC as may be conferred by any other law in respect of employment and labour relations. The three written laws, the Employment Act, the Labour Relations Act, and the Labour Institutions Act, create additional categories of persons and offices who have access to the court but who are neither employees nor employers. They provide in plain language that this category of persons and offices can sue or be sued before the ELRC. The statutes further provide that pre-employment grievances involving those categories are justiciable in the ELRC. Any dispute beyond those explicitly stated class must be instituted in the High Court.
71……
[72] As we conclude on this aspect of the appeal, we restate our determination
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