REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. E047 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
JOHN WALELA SIMIYU………………………………...…. PETITIONER
-VERSUS-
AERONAV MAINTAINANCE LTD……………………….1ST RESPONDENT
KENYA SCHOOL OF FLYING……………………………2ND RESPONDENT
RULING
The petitioner filed the instant suit vide a Plaint dated 5th February 2026 together with a Notice of Motion of even date filed under certificate of urgency seeking various substantive and other reliefs.
The reliefs included availment of terms and conditions, particulars and methods of computing the applicant’s remuneration as an aircraft technician, injunction to restrain the Respondents from implementing the applicant’s suspension, dismissal or withholding of salary, payment of salaries for teaching at the 2nd Respondent directions, on annual leave for 2025 and costs of the application.
The application was not based on any legal provisions and was grounded on the Supporting Affidavit of the applicant sworn on 5th February 2026.
On 14th April, 2026, the Respondents counsel filed a Notice of Preliminary Objection dated 13th April 2026, a fact he informed the court when the matter came up on 30th May 2026 and directions on the filing of submissions and ruling date were issued.
The Respondent’s Notice of Preliminary Objection challenges the suit on the grounds that:
1. The suit is incompetent ab initio for having been instituted by way of a Plaint contrary to Rule 4 of the Employment and Labour Relations Court (Procedure) Rules 2024.
2. The Plaint renders the proceedings fatally defective, null and void and incapable of amendments.
3. The court was improperly moved and ought to be struck out.
4. The claim is incompetent and bad in law and was for striking out.
The court has considered the petitioner’s written submissions dated 26th May, 2026. The Respondents did not file submissions.
Analysis and determination
The singular issue for determination is whether the Respondent’s Notice of Preliminary Objection is merited.
Before delving into the issue, it is necessary to determine whether the Notice of Preliminary Objection meets the threshold in Muksa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A 696 where Law JA stated:
“So far as I am aware a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”
Sir Charles Newbod P added as follows:
“A preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleased by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion.”
See also Attorney General & another v Githinji and another (2016) KECA 817 (KLR) where the Court of Appeal summarized the test enunciated in the Mukisa Case.
In this case the Respondent’s Notice of Preliminary Objection is grounded on the fact that the petitioner did not comply with the provisions of the Employment and Labour Relations Court (Procedure) Rules 2024 for the simple reason that the petitioner filed a Plaint as opposed to the prescribed documentation.
The rules that govern the institution of suits in the Employment and Labour Relations Court are well established and are embodied in Part II of the Employment and Labour Relations Court (Procedure) Rules, 2024. (hereinafter ELRC Rules)
In the case of institution of Claims, under Rule 7 of the ELRC Rules
(i) A person who wishes to refer a dispute to the court under any written law shall file a Statement of Claim setting out; -
This provision details the contents of the statement of claim, including the order or reliefs sought and the documents to accompany the statement.
Equally, in the case of institution of Petitions and Judicial Review, Rule 10 of the ELRC Rules provides:
(1) Any person who wishes to institute a petition shall do so in accordance with The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules)
(2) Any person who wishes to institute judicial review proceedings shall do so in accordance with sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules.
These provisions are couched in mandatory tone and thus must be complied with by persons who desire to institute proceedings in the Employment and Labour Relations Court.
In the instant suit, it is not in dispute that the petitioner filed a Plaint and thus did not comply with the provisions of Rule 7 or 10 of the ELRC Rules.
Having filed or intended to file a petition, the Provisions Rule 10(1) of the ELRC Rules ought to have been complied with but was not, rendering the suit not only incompetent but fatally defective.
The foregoing is fortified by the sentiments of the Court of Appeal in Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & another (2015) eKLR thus:
“It has often been stated that rules of procedure are hand maidens of justice and where there is a clear provision for redress of any grievance prescribed by an Act of Parliament, that provision should be strictly followed.
Second that Article 159 of the constitution was neither aimed at conferring jurisdiction where none exists nor was it intended to derogate from express statutory procedures for initiation of causes of action before courts.”
And as held in Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 OTHER (2015) EKLR
“Article 159 (2) of the constitution is not a panacea for all procedural shortfalls.”
See also Lemankan v Harum Meitamei Lempaka & 2 others (2014) eKLR
Finally, in Cosmos Ltd & another v Kenya Revenue Authority (2019) KECA 70(KLR) the Court of Appeal stated;
“Our appreciation of the above principle is that; they restate an age principle that rules of procedure are not meant for cosmetic value. They are meant to be obeyed.”
See also in this regard Githere v Kimungu (1976) -1985) E.A 101, Abdi Rahman Mohamudi Abdi v Safi Petroleum Products Ltd & 6 others Civil Application No. 173 of 2010 and Ann Wanjunu v Mwihaki Waruiru & 2 others (2018) KECA 340 (KLR).
In the courts view, the petitioner ought to have complied with the provisions of Rule 7 of the ELRC Rules 2024 by filing a Statement of Claim as none of the claims made raise a constitutional issue.
In the upshot, the Respondent’s Notice of Preliminary Objection dated 13th April, 2026 is upheld and the plaint dated 5th February 2026 is struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH 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
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