REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E406 OF 2025
NICHOLAS JUMA MAKOKHA…………………….PETITIONER
VERSUS
NATIONAL YOUTH SERVICE……….…….…1 ST RESPONDENT
NATIONAL YOUTH SERVICE COUNCIL…..2 ND RESPONDENT
DIRECTOR GENERAL /COMMANDANT GENERAL OF THE NATIONAL YOUTH SERVICE……………….3 RD RESPONDENT
ATTORNEY GENERAL……………………….4 TH RESPONDENT
CABINET SECRETARY STATE DEPARTMENT FOR PUBLIC SERVICE AND HUMAN CAPITAL DEVELOPMENT………………………………5 TH RESPONDENT
JUDGMENT
Introduction
1. This petition concerns the petitioner’s claim that he was unlawfully suspended from duty by the 3 rd respondent at the behest of the 2 nd , 3 rd ,4 th and 5 th respondents which was in contravention of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
Background
2. The petitioner is a member of the National Youth Service (NYS) holding the rank of Deputy Commandant General. On 2 nd May 2025, Ethics and Anti-Corruption Commission (EACC) filed Milimani Anti- Corruption Court Misc. Criminal Application No E604 of 2025 on the basis that it had received a complaint that a public official had illegally acquired Ksh.510,500,198 between January 2017 and March 2025. An Investigating Officer alleged that the petitioner was a proxy of the public official involved and sought search warrants to search the petitioner’s office, business and residence. The Court issued the orders and directed that a progress report be filed in Court on 15 th May 2025. A report was however not filed even after the time for filing the report was extended.
3. By letter dated 19 th May 2025, the 5 th respondent informed the 3 rd respondent about an alleged embezzlement of money in NYS. The 5 th respondent directed the 3 rd Respondent to submit evidence of the disciplinary action taken against the petitioner within 5 days.
4. The 3 rd respondent under instructions from the 2 nd , 3 rd ,4 th and 5 th respondents, sent the petitioner on compulsory leave on 29 th May 2025. Thereafter, by letter dated 25 th June 2025, the 3 rd respondent suspended the petitioner from duty for a period of 6 months.
Petitioner’s Case
5. The petitioner filed this petition against the respondents for the alleged failure to follow due process prior to suspending him from duty. The petitioner asserted that the respondents suspended him without notice, or without giving him an opportunity to be heard. The action was also based on unsubstantiated claims by EACC. The petitioner further asserted that the respondents’ action was not based on any law this, unlawful, malicious and in violation of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
6. The petitioner stated that section 3(2) of the Employment Act excludes the National Youth Service personnel from the protection and mechanism of the Act. That notwithstanding, he maintained that the petition raises constitutional issues concerning allegations against him by of a third party rather than his employer. The petitioner also asserted that the 3 rd respondent had withheld his salary and benefits for the 6-month suspension period in contravention of his right to social-economic rights.
7. Based on the foregoing, the petitioner urged the Court to intervene and halt the illegal suspension and sought the following reliefs:
i. A declaration that the respondents' decision communicated vide the letter Ref. National Youth Service/CONF/1989126142 dated 25 th June 2025 suspending the petitioner contravened Articles 47, 50(1) and 236(b) of the Constitution and is unconstitutional, unlawful, unreasonable and null and void ab initio.
ii. A declaration that the 5 th respondent acted ultra vires and in abuse of office by usurping the disciplinary powers vested elsewhere, thereby violating the petitioner's constitutional rights.
iii. A declaration that the acts and directives of the 5 th respondent, purporting to oversight, enforce or initiate disciplinary actions in respect of the petitioner despite having no statutory mandate under Sections 2 and 9 of the National Youth Service Act, violates Articles 10, 41, 47 and 73 of the Constitution, is ultra vires, unconstitutional, null and void ab initio, and of no legal effect whatsoever.
iv. This prayer is missing.
v. This prayer is missing.
vi. An order of mandamus directing the 1 st respondent to expunge from National Youth Service Records all adverse entries arising from the impugned suspension.
vii. An order of permanent injunction against all the Respondents to cease from further acting illegally by threatening, intimidating, harassing, victimizing and or subjecting the petitioner to any further unnecessary and unwarranted disciplinary action.
viii. General damages (or in the alternative aggravated damages) for the violation of the petitioner's constitutional and statutory rights, to be assessed by this Court.
ix. Costs of this Petition together with interest.
x. Such other or further relief as this Court may deem fit in the circumstances to grant.
Response
8. The respondents opposed the petition through a preliminary objection, arguing that the Court lacks jurisdiction to hear and determine this matter since the subject matter of the petition is predominantly an employment and labour relations dispute concerning petitioner’s suspension from duty.
9. In that regard, the respondents maintained that the matter falls within the jurisdiction of Employment and Labour Relations Court (ELRC) by virtue of Article 162(2) (a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act.
Parties Submissions
Petitioner’s submissions
10. Brig. Dindi, learned counsel for the petitioner, submitted highlighting their written submissions, that this Court has jurisdiction to hear and determine the petitioner. According to learned counsel, the petition concerns the respondents’ violation of the petitioner’s rights guaranteed under Articles 10,47 and 50(1) of the Constitution. The respondents also violated sections 3, 60, 65 and 71 of the Public Service Act, read with regulations 3, 4, 60 and 62 of the Public Service Regulations and sections 2, 4, 5, 9, 12, 33 and 34 of the National Youth Service Act.
11. Brig. Dindi argued that the issues raised in the petition were not on employment but focus on violation of fundamental rights and unconstitutionality of regulation 13 of the National Youth Service (Disciplinary Procedure) Regulations and Legal Notice No. 8 of 2021.
12. Learned counsel argued that jurisdiction of the Employment and Labour Relations Court can only be invoked where the dispute is on employer – employee relationship. Counsel maintained that the petition is not about an employee suing the employer. Counsel relied on the Supreme Court decision in Karisa Chengo & others v Republic [2017] eKLR that jurisdiction is not determined by the parties’ pleadings or the respondents’ characterization of the dispute but from a contextual reading of the claim and the issues raised therein.
13. Counsel again relied on National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others [2023] KECA (KLR) and Elijah Okemwa v Clerk, County Assembly of Nyamira & others [2018] KEHC 8632 (KLR).
14. Brig. Dindi argued that the constitutional principles outlined in the cited provisions oblige all state organs and officers to uphold national values when discharging their mandate. In this case, the respondents were required to undertake an administrative process that was expeditious, lawful, reasonable and procedurally fair while affording the petitioner fair hearing which was not the case.
15. In the circumstances of this petition, learned counsel argued, the respondents’ actions violated the petitioner’s rights and fundamental freedoms. The respondents suspended the petitioner without due process; without notice; hearing or written reasons for the action taken against him. The petitioner was condemned unheard; without investigation or opportunity to defend himself. The suspension was based on external influence as opposed to a legitimate claim thus, arbitrary.
16. Learned counsel relied on the decision in Commission for the Implementation of the Constitution v Attorney General & another [2013] eKLR for the position that Article 10 of the Constitution binds all decision making by public bodies and failure to uphold those values renders administrative actions invalid.
17. Further reliance was placed on the decisions in Kenya Human Rights Commission v Non-governmental Organizations Co-ordination Board [2018] eKLR; Judicial Service Commission v Gladys Boss Shollei and another [2014] eKLR; Njuguna v Ministry of Agriculture [2004] 1 KLR and Republic v Dedan Kimathi University of Technology; Wachiuri (Ex parte) [2022] KEHC 10052(KLR).
18. Brig. Dindi argued that the Public Service Act and the Regulations made thereunder set out explicit requirements for due process, in terms of disciplinary control and procedural fairness in proceedings involving public officers. He argued that under sections 60, 65 and 71 of the Act read with regulations 3, 4, 60 and 62, disciplinary actions are to be carried out in a transparent manner where adequate notice is issued, proper investigations carried out and the officer concerned granted an opportunity to be heard before a decision is made.
19. Learned counsel argued that the respondents acted arbitrarily without adhering to the requirements of the law. According to learned counsel, the petitioner’s employer, the Public Service Commission, was not involved in the process. Reliance was placed on Republic v Public Service Commission & another ex parte Loise Maina [2017] eKLR for the position that the Court should quash disciplinary action taken against a public officer without observing statutory and regulatory procedures (investigation, notification and a hearing).
20. Brig. Dindi maintained that section 12 of the National Youth Service Act read with National Youth Service (Disciplinary Procedure) Regulations only empower the Council to review penalties after proper disciplinary procedures and not to initiate disciplinary actions directly.
21. Learned counsel argued that the respondents’ failure to comply with the law rendered their actions against the petitioner unlawful null and void.
Respondents’ Submissions
22. Miss Were, learned counsel for the respondents, relied on their written submissions and the decisions cited therein. In the written submissions, the respondents argued that the Court lacks jurisdiction to entertain the petition since the substratum of the petition concerns the suspension of the petitioner from duty.
23. The respondents argued that the petitioner was suspended from duty on the recommendation of EACC based on the allegation of abuse of office by the petitioner and two other officers of NYS. In that regard, the proper court with jurisdiction to deal with the petitioner’s grievances lies with the ELRC by virtue of Article 162(2) (a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act.
24. The respondents submitted that the issue of jurisdiction is fundamental, maintaining that this Court cannot entertain the Petition since it falls within the purview of the ELRC. Reliance was placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the position that a court of law can only exercise jurisdiction as conferred by the Constitution or other written law.
25. Reliance was further placed on the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR). They urged the court to dismiss the petition.
Determination
26. I have considered the pleadings, arguments by parties and the decisions relied on. The issues that arise for determination are whether this court has jurisdiction and, depending on the answer to this issue, whether the petition should be allowed.
Jurisdiction
27. The respondents argued that this Court has no jurisdiction to hear this petition because the issues raised in the petition relate to employment thus, falling within the jurisdiction of the ELRC. The petitioner maintained that there is no employer-employee relationship, but a case of violation of the Constitution, the law and rights and fundamental freedoms which are issues that fall within the jurisdiction of this Court.
28. Jurisdiction is the power or authority given to a court to hear and determine disputes presented before it for resolution. Whether a court has jurisdiction to hear a matter or not, is a threshold question to be determined based on the facts of the matter before court. Where jurisdiction of a court is challenge, the Court has to carefully consider and determine the fundamental question of its jurisdiction over the matter.
29. If the Court determines that it has no jurisdiction to hear a matter, that is the end of that matter. The Court should not take any further step, but down its tools. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR).
30. In Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
31. In re the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] KESC 1 (2011), after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), the Supreme Court observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
It follows, therefore, that since jurisdiction of a court must flow from the Constitution, statute or both, the Court should only exercise jurisdiction as conferred on it by the Constitution or the law. The Court must not act without jurisdiction.
32. Article 162(2)(a) required Parliament to establish Courts with equal status to the High Court to hear and determine disputes relating to employment and labour relations. Parliament enacted the Employment and Labour Relations Court Act whose section 4 establishes the ELRC, while section 12 of the Act provides for the jurisdiction of the Court.
33. Under section 12, the ELRC has exclusive, original and appellate jurisdiction to determine all disputes referred to that court in accordance with Article 162 (2) of the Constitution, the provisions of the Act, and any other written law that extends jurisdiction to the Court.
34. Section 12 is clear that jurisdiction of the ELRC is on disputes relating to, or arising out of, employment between an employer and an employee; an employer and a trade union; an employers’ organisation and a trade union’s organisation; between trade unions; between employer organisations; an employers’ organisation and a trade union; a trade union and employer’s organisation or a federation and a member thereof; concerning registration and election of trade union officials; and disputes relating to the registration and enforcement of collective agreements.
35. In that regard, Article 162(2) (a) of the Constitution read with section 12 of the ELRC Act, are clear that the core jurisdiction of the ELRC is to determine disputes that arise out of employer-employee relationship and related matters.
36. The jurisdiction of this Court, on the other hand, is donated by Article 165(3) of the Constitution. This Court has unlimited original jurisdiction in criminal and civil matters. Further, this Court has jurisdiction to, among others, determine (b) the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (d) any question respecting interpretation of the Constitution, including determination of—(i) the question whether any law is inconsistent with or in contravention of the Constitution; (ii) the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
37. Article 165(3) therefore authorizes this Court to decide all matters other than those reserved for other superior courts as contemplated under Article 162 (2) and restricted by Article 165(5) and (6) of the Constitution. The sweep of the constitutional authorization given to this Court, including when determining a challenge to its jurisdiction, should be understood and viewed through the prism of Article 165(3).
38. The issue of jurisdiction between the ELRC and this Court has been the subject of litigation in the superior courts. In Attorney General & another v Dr. Major (RTD) Shadrack Mutia Muiu & another (Civil Appeal No. E146 of 2021) [2025] KECA 816 (KLR), the Court of Appeal was called upon to consider an appeal from the judgment of the ELRC where a petition had been filed challenging the decision to withhold the petitioner’s salary and allowances as unconstitutional. The petitioner had been appointed a Commissioner to the National Police Service Commission. The ELRC held that withholding the salary was unlawful and awarded the petitioner his withheld salary from the period it was stopped to the end of his term.
39. The Attorney General and the National Police Service Commission, the respondents in the case, were aggrieved with that judgment and lodged an appeal in the Court of Appeal. The Court of Appeal held, referring to its decision in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others (Civil Appeal 621 of 2019 & 74 of 2020 (Consolidated)) [2020] KECA 30 (KLR) as follows:
[25] In its judgment in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others (supra), this Court emphatically found that the appointment and removal from office of the commissioners or holders of independent offices is not a labour and employment issue as it does not involve any of the parties or raise any of the employment and labour issues contemplated by section 12 of the Act.
40. The Court of Appeal took the view, that the dispute raised in the matter had a constitutional connotation and could not be said to strictly fall under section 12 of the Employment Act. The Court of Appeal pointed out that jurisdiction of the ELRC is limited rather than unlimited and that whereas the ELRC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on employment and labour relations, the ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution.
41. In County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested party) [2022] KESC 66(KLR), the Supreme Court stated:
On the question of the appropriate forum of the dispute, the trial court found that the question of enforcement of rights and fundamental freedoms even touching on the employment and labour is within the competence of the High Court pursuant to article 22. We are inclined to agree with the trial court and add that articles 23 and 165 of the Constitution fortifies this position as they are the provisions that give the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights and fundamental freedoms in the Bill of Rights.
42. In addition to the above pronouncement, one must also pay close attention to Article 165(3)(d) which confers on this court jurisdiction to hear any question respecting interpretation of the Constitution, including the determination of the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.
43. In the present petition, the petitioner argued that the issues raised are on violation of the Constitution, the law and fundamental rights and freedoms. According to the petitioner, the issues that the Court is required to determine, include whether the respondents could suspend him in the manner they did without giving him a hearing. The petitioner further argued that he is not an employee of any of the respondents and that section 3(1) (c) of the Employment Act does not apply to NYS and by extension, to him.
44. I have carefully read the petition and the issues raised. The issues do not include determination of employer–employee relationship or related matters. Rather the issues are purely on the interpretation of the Constitution and the law, namely; whether the respondents could act as they did and if indeed the petitioner’s rights and fundamental freedoms were violated. In other words, this Court is called upon to determine whether the respondents’ actions were constitutional and lawful. As a matter of fact, there is no employer-employee relationship issue in this petition, except the constitutionality and legality of the respondents’ impugned actions. That is; the petition challenges what the petitioner perceives to be constitutional and legal infractions thereby, questioning the constitutional validity and legality of those actions.
45. Section 3(2)(c) of the Employment Act excludes the National Youth Service from the application of that Act. This does not however mean that issues of employment cannot be raised with ELRC in appropriate cases.
46. As already stated earlier, under article 165(3)(b) and (d) of the Constitution, this Court is given express jurisdiction to hear any question on violation of rights and fundamental freedoms and the interpretation of the Constitution, including determination of questions whether anything said to be done under the authority of the Constitution or of any law, is inconsistent with, or in contravention of, the Constitution.
47. In so far as this petition is concerned, this Court will have to determine whether anything that was said to have been done by the respondents under the authority of the Constitution or the law, is inconsistent with or in contravention of the Constitution, the law or the petitioner’s rights and fundamental freedoms which falls within the jurisdiction of this Court.
48. In other words, the petition seeks this Court’s determination of whether the respondents’ actions were within the framework of the Constitution and the law thus, falling within the exclusive jurisdiction of this Court. There are also questions regarding actions or omissions on the part of the respondents which also call for interpretation of the Constitution and the law.
49. In the circumstances, I find and hold that this Court has jurisdiction to hear and determine this petition.
Violations
50. Having disposed of the issue of jurisdiction, the next question is whether the respondents’ action violated the Constitution, the law or the petitioner’s rights and fundamental freedoms. The petitioner argued in the affirmative while the respondents took the opposite view. The petitioner argued that the 3 rd respondent unlawfully suspended him from duty at the behest of the other respondents in contravention of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
51. EACC obtained search warrants on the basis that it had received information that an official had acquired public money between January 2017 and March 2025 and that the petitioner was a proxy of that official. EACC wanted to search the petitioner’s office, business and residence to gather documentary evidence to assist in the investigations. The Magistrate’s court issued search warrants and directed that a progress report be filed in Court on 15 th May 2025. The petitioner stated that no report was filed as directed and the petitioner argued that the respondents’ actions unlawful.
52. On 19 th May 2025, the 5 th respondent informed the 3 rd respondent about a statement by EACC that it was investigating members of the Service for suspected offences of conflict of interest and abuse of office which are cognizable offences under sections 42 and 46 of the EACC Act and directed the 3 rd respondent to submit information regarding disciplinary action taken against the petitioner.
53. On 29 th May 2023, the 3 rd respondent sent the petitioner on compulsory leave and on 25 th June 2025, following the Council’s meeting, the 3 rd respondent suspended the petitioner from duty for a period of 6 months until further notice. The petitioner argued that these actions were not only in disregard of the, but also violated his rights and fundamental freedoms.
54. I have considered the arguments by parties and perused the record. The EACC commenced investigations against members of the Service for suspected conflict of interest and abuse of office(corruption) within the Service. The EACC obtained search warrants authorizing searches and seizure of documents from the petitioner’s office, residence and business premises which may be relevant in its investigations. In the meantime, the petitioner was asked to take leave pending investigations, but was later suspended for six months.
55. Section 5 of NYS Act establishes NYS as a disciplined Service. Members of the Service consist of officers of the ranks specified in the First Schedule. These ranks are: Gazetted Officers, that is the Director General to Superintendents; Inspectorate Officers-Chief Inspectors to Cadet Inspectors; and Subordinate Officers-Senior Surgent to privates. The Act applies to these officers of the Service and also those who may be seconded to the Service.
56. Section 33 of the Act is on discipline. Section 33(2) provides that a member of the Service who commits any of the acts set out in the Fourth Schedule commits an offence against discipline. Subsection (3) provides that a member of the Service who commits an offence under any other written law “ shall be liable to proceedings in a court of law in accordance with the provisions of the law under which the offence was committed.”
57. Further, section 33(4) provides:
Despite the provisions of subsection (3), the Director-General or an officer authorised in writing by the Director-General may, for cause, take such disciplinary action as may be appropriate in the circumstances against a member of the Service who commits an offence under this Act or any other written law.
58. On the other hand, section 42 of the EACC Act is on conflict of interest. Section 42 (3) provides that an agent of a public body who knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body is guilty of an offence. Section 46 of the same Act provides that a person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence.
59. The gravamen of the petitioner’s case is that the 3 rd respondent had no mandate to send him on compulsory leave and later to suspend him for six months. The actions, the petitioner argued, were in violation of the Constitution, the law and his rights and fundamental freedoms. The petitioner cited Articles 10, 25, 41, 47, 50 and 73 of the Constitution in that regard.
60. The petitioner stated that he is a member of the Service and gave his Service Number. For purposes of the NYS Act, members of the Service, include those who are seconded to the service so that the Act applies fully to such a member as members of the Service. The petitioner did not argue that the Act does not apply to his as a member of the Service.
61. Article 10 is on national values and principles of good governance. Article 10(1) stated that values and principles in article 10(2) binds all person in the performance of their duties while article 10(2) enumerates the values and principles of good governance, including the rule of law, human dignity, and human rights. Article 25 is on human rights and fundamental freedoms that may not be limited, including the right to a fair trial. Article 41 is on the right to fair labour practices; article 47 on the right to administrative action; article 50 of the right to fair hearing while article 73 is on responsibilities of leadership.
62. These articles must be looked at and appreciated in the context of the facts of this petition, that the actions complained of were preliminary and subject to investigations that were being undertaken at the time the petition was filed and in particular, whether the 3 rd respondent could act as he did at the time.
63. To determine whether the 3 rd respondent properly acted, as he did, the starting point must be the action taken by the EACC. The EACC filed an application in court Misc. Application No. E 609 OF 2025, seeking an order for search warrants. The petitioner was the respondent in that application. The petitioner attached a copy of the supporting affidavi
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E406 OF 2025
NICHOLAS JUMA MAKOKHA…………………….PETITIONER
VERSUS
NATIONAL YOUTH SERVICE……….…….…1 ST RESPONDENT
NATIONAL YOUTH SERVICE COUNCIL…..2 ND RESPONDENT
DIRECTOR GENERAL /COMMANDANT GENERAL OF THE NATIONAL YOUTH SERVICE……………….3 RD RESPONDENT
ATTORNEY GENERAL……………………….4 TH RESPONDENT
CABINET SECRETARY STATE DEPARTMENT FOR PUBLIC SERVICE AND HUMAN CAPITAL DEVELOPMENT………………………………5 TH RESPONDENT
JUDGMENT
Introduction
1. This petition concerns the petitioner’s claim that he was unlawfully suspended from duty by the 3 rd respondent at the behest of the 2 nd , 3 rd ,4 th and 5 th respondents which was in contravention of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
Background
2. The petitioner is a member of the National Youth Service (NYS) holding the rank of Deputy Commandant General. On 2 nd May 2025, Ethics and Anti-Corruption Commission (EACC) filed Milimani Anti- Corruption Court Misc. Criminal Application No E604 of 2025 on the basis that it had received a complaint that a public official had illegally acquired Ksh.510,500,198 between January 2017 and March 2025. An Investigating Officer alleged that the petitioner was a proxy of the public official involved and sought search warrants to search the petitioner’s office, business and residence. The Court issued the orders and directed that a progress report be filed in Court on 15 th May 2025. A report was however not filed even after the time for filing the report was extended.
3. By letter dated 19 th May 2025, the 5 th respondent informed the 3 rd respondent about an alleged embezzlement of money in NYS. The 5 th respondent directed the 3 rd Respondent to submit evidence of the disciplinary action taken against the petitioner within 5 days.
4. The 3 rd respondent under instructions from the 2 nd , 3 rd ,4 th and 5 th respondents, sent the petitioner on compulsory leave on 29 th May 2025. Thereafter, by letter dated 25 th June 2025, the 3 rd respondent suspended the petitioner from duty for a period of 6 months.
Petitioner’s Case
5. The petitioner filed this petition against the respondents for the alleged failure to follow due process prior to suspending him from duty. The petitioner asserted that the respondents suspended him without notice, or without giving him an opportunity to be heard. The action was also based on unsubstantiated claims by EACC. The petitioner further asserted that the respondents’ action was not based on any law this, unlawful, malicious and in violation of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
6. The petitioner stated that section 3(2) of the Employment Act excludes the National Youth Service personnel from the protection and mechanism of the Act. That notwithstanding, he maintained that the petition raises constitutional issues concerning allegations against him by of a third party rather than his employer. The petitioner also asserted that the 3 rd respondent had withheld his salary and benefits for the 6-month suspension period in contravention of his right to social-economic rights.
7. Based on the foregoing, the petitioner urged the Court to intervene and halt the illegal suspension and sought the following reliefs:
i. A declaration that the respondents' decision communicated vide the letter Ref. National Youth Service/CONF/1989126142 dated 25 th June 2025 suspending the petitioner contravened Articles 47, 50(1) and 236(b) of the Constitution and is unconstitutional, unlawful, unreasonable and null and void ab initio.
ii. A declaration that the 5 th respondent acted ultra vires and in abuse of office by usurping the disciplinary powers vested elsewhere, thereby violating the petitioner's constitutional rights.
iii. A declaration that the acts and directives of the 5 th respondent, purporting to oversight, enforce or initiate disciplinary actions in respect of the petitioner despite having no statutory mandate under Sections 2 and 9 of the National Youth Service Act, violates Articles 10, 41, 47 and 73 of the Constitution, is ultra vires, unconstitutional, null and void ab initio, and of no legal effect whatsoever.
iv. This prayer is missing.
v. This prayer is missing.
vi. An order of mandamus directing the 1 st respondent to expunge from National Youth Service Records all adverse entries arising from the impugned suspension.
vii. An order of permanent injunction against all the Respondents to cease from further acting illegally by threatening, intimidating, harassing, victimizing and or subjecting the petitioner to any further unnecessary and unwarranted disciplinary action.
viii. General damages (or in the alternative aggravated damages) for the violation of the petitioner's constitutional and statutory rights, to be assessed by this Court.
ix. Costs of this Petition together with interest.
x. Such other or further relief as this Court may deem fit in the circumstances to grant.
Response
8. The respondents opposed the petition through a preliminary objection, arguing that the Court lacks jurisdiction to hear and determine this matter since the subject matter of the petition is predominantly an employment and labour relations dispute concerning petitioner’s suspension from duty.
9. In that regard, the respondents maintained that the matter falls within the jurisdiction of Employment and Labour Relations Court (ELRC) by virtue of Article 162(2) (a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act.
Parties Submissions
Petitioner’s submissions
10. Brig. Dindi, learned counsel for the petitioner, submitted highlighting their written submissions, that this Court has jurisdiction to hear and determine the petitioner. According to learned counsel, the petition concerns the respondents’ violation of the petitioner’s rights guaranteed under Articles 10,47 and 50(1) of the Constitution. The respondents also violated sections 3, 60, 65 and 71 of the Public Service Act, read with regulations 3, 4, 60 and 62 of the Public Service Regulations and sections 2, 4, 5, 9, 12, 33 and 34 of the National Youth Service Act.
11. Brig. Dindi argued that the issues raised in the petition were not on employment but focus on violation of fundamental rights and unconstitutionality of regulation 13 of the National Youth Service (Disciplinary Procedure) Regulations and Legal Notice No. 8 of 2021.
12. Learned counsel argued that jurisdiction of the Employment and Labour Relations Court can only be invoked where the dispute is on employer – employee relationship. Counsel maintained that the petition is not about an employee suing the employer. Counsel relied on the Supreme Court decision in Karisa Chengo & others v Republic [2017] eKLR that jurisdiction is not determined by the parties’ pleadings or the respondents’ characterization of the dispute but from a contextual reading of the claim and the issues raised therein.
13. Counsel again relied on National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others [2023] KECA (KLR) and Elijah Okemwa v Clerk, County Assembly of Nyamira & others [2018] KEHC 8632 (KLR).
14. Brig. Dindi argued that the constitutional principles outlined in the cited provisions oblige all state organs and officers to uphold national values when discharging their mandate. In this case, the respondents were required to undertake an administrative process that was expeditious, lawful, reasonable and procedurally fair while affording the petitioner fair hearing which was not the case.
15. In the circumstances of this petition, learned counsel argued, the respondents’ actions violated the petitioner’s rights and fundamental freedoms. The respondents suspended the petitioner without due process; without notice; hearing or written reasons for the action taken against him. The petitioner was condemned unheard; without investigation or opportunity to defend himself. The suspension was based on external influence as opposed to a legitimate claim thus, arbitrary.
16. Learned counsel relied on the decision in Commission for the Implementation of the Constitution v Attorney General & another [2013] eKLR for the position that Article 10 of the Constitution binds all decision making by public bodies and failure to uphold those values renders administrative actions invalid.
17. Further reliance was placed on the decisions in Kenya Human Rights Commission v Non-governmental Organizations Co-ordination Board [2018] eKLR; Judicial Service Commission v Gladys Boss Shollei and another [2014] eKLR; Njuguna v Ministry of Agriculture [2004] 1 KLR and Republic v Dedan Kimathi University of Technology; Wachiuri (Ex parte) [2022] KEHC 10052(KLR).
18. Brig. Dindi argued that the Public Service Act and the Regulations made thereunder set out explicit requirements for due process, in terms of disciplinary control and procedural fairness in proceedings involving public officers. He argued that under sections 60, 65 and 71 of the Act read with regulations 3, 4, 60 and 62, disciplinary actions are to be carried out in a transparent manner where adequate notice is issued, proper investigations carried out and the officer concerned granted an opportunity to be heard before a decision is made.
19. Learned counsel argued that the respondents acted arbitrarily without adhering to the requirements of the law. According to learned counsel, the petitioner’s employer, the Public Service Commission, was not involved in the process. Reliance was placed on Republic v Public Service Commission & another ex parte Loise Maina [2017] eKLR for the position that the Court should quash disciplinary action taken against a public officer without observing statutory and regulatory procedures (investigation, notification and a hearing).
20. Brig. Dindi maintained that section 12 of the National Youth Service Act read with National Youth Service (Disciplinary Procedure) Regulations only empower the Council to review penalties after proper disciplinary procedures and not to initiate disciplinary actions directly.
21. Learned counsel argued that the respondents’ failure to comply with the law rendered their actions against the petitioner unlawful null and void.
Respondents’ Submissions
22. Miss Were, learned counsel for the respondents, relied on their written submissions and the decisions cited therein. In the written submissions, the respondents argued that the Court lacks jurisdiction to entertain the petition since the substratum of the petition concerns the suspension of the petitioner from duty.
23. The respondents argued that the petitioner was suspended from duty on the recommendation of EACC based on the allegation of abuse of office by the petitioner and two other officers of NYS. In that regard, the proper court with jurisdiction to deal with the petitioner’s grievances lies with the ELRC by virtue of Article 162(2) (a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act.
24. The respondents submitted that the issue of jurisdiction is fundamental, maintaining that this Court cannot entertain the Petition since it falls within the purview of the ELRC. Reliance was placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the position that a court of law can only exercise jurisdiction as conferred by the Constitution or other written law.
25. Reliance was further placed on the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR). They urged the court to dismiss the petition.
Determination
26. I have considered the pleadings, arguments by parties and the decisions relied on. The issues that arise for determination are whether this court has jurisdiction and, depending on the answer to this issue, whether the petition should be allowed.
Jurisdiction
27. The respondents argued that this Court has no jurisdiction to hear this petition because the issues raised in the petition relate to employment thus, falling within the jurisdiction of the ELRC. The petitioner maintained that there is no employer-employee relationship, but a case of violation of the Constitution, the law and rights and fundamental freedoms which are issues that fall within the jurisdiction of this Court.
28. Jurisdiction is the power or authority given to a court to hear and determine disputes presented before it for resolution. Whether a court has jurisdiction to hear a matter or not, is a threshold question to be determined based on the facts of the matter before court. Where jurisdiction of a court is challenge, the Court has to carefully consider and determine the fundamental question of its jurisdiction over the matter.
29. If the Court determines that it has no jurisdiction to hear a matter, that is the end of that matter. The Court should not take any further step, but down its tools. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR).
30. In Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
31. In re the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] KESC 1 (2011), after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), the Supreme Court observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
It follows, therefore, that since jurisdiction of a court must flow from the Constitution, statute or both, the Court should only exercise jurisdiction as conferred on it by the Constitution or the law. The Court must not act without jurisdiction.
32. Article 162(2)(a) required Parliament to establish Courts with equal status to the High Court to hear and determine disputes relating to employment and labour relations. Parliament enacted the Employment and Labour Relations Court Act whose section 4 establishes the ELRC, while section 12 of the Act provides for the jurisdiction of the Court.
33. Under section 12, the ELRC has exclusive, original and appellate jurisdiction to determine all disputes referred to that court in accordance with Article 162 (2) of the Constitution, the provisions of the Act, and any other written law that extends jurisdiction to the Court.
34. Section 12 is clear that jurisdiction of the ELRC is on disputes relating to, or arising out of, employment between an employer and an employee; an employer and a trade union; an employers’ organisation and a trade union’s organisation; between trade unions; between employer organisations; an employers’ organisation and a trade union; a trade union and employer’s organisation or a federation and a member thereof; concerning registration and election of trade union officials; and disputes relating to the registration and enforcement of collective agreements.
35. In that regard, Article 162(2) (a) of the Constitution read with section 12 of the ELRC Act, are clear that the core jurisdiction of the ELRC is to determine disputes that arise out of employer-employee relationship and related matters.
36. The jurisdiction of this Court, on the other hand, is donated by Article 165(3) of the Constitution. This Court has unlimited original jurisdiction in criminal and civil matters. Further, this Court has jurisdiction to, among others, determine (b) the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (d) any question respecting interpretation of the Constitution, including determination of—(i) the question whether any law is inconsistent with or in contravention of the Constitution; (ii) the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
37. Article 165(3) therefore authorizes this Court to decide all matters other than those reserved for other superior courts as contemplated under Article 162 (2) and restricted by Article 165(5) and (6) of the Constitution. The sweep of the constitutional authorization given to this Court, including when determining a challenge to its jurisdiction, should be understood and viewed through the prism of Article 165(3).
38. The issue of jurisdiction between the ELRC and this Court has been the subject of litigation in the superior courts. In Attorney General & another v Dr. Major (RTD) Shadrack Mutia Muiu & another (Civil Appeal No. E146 of 2021) [2025] KECA 816 (KLR), the Court of Appeal was called upon to consider an appeal from the judgment of the ELRC where a petition had been filed challenging the decision to withhold the petitioner’s salary and allowances as unconstitutional. The petitioner had been appointed a Commissioner to the National Police Service Commission. The ELRC held that withholding the salary was unlawful and awarded the petitioner his withheld salary from the period it was stopped to the end of his term.
39. The Attorney General and the National Police Service Commission, the respondents in the case, were aggrieved with that judgment and lodged an appeal in the Court of Appeal. The Court of Appeal held, referring to its decision in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others (Civil Appeal 621 of 2019 & 74 of 2020 (Consolidated)) [2020] KECA 30 (KLR) as follows:
[25] In its judgment in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others (supra), this Court emphatically found that the appointment and removal from office of the commissioners or holders of independent offices is not a labour and employment issue as it does not involve any of the parties or raise any of the employment and labour issues contemplated by section 12 of the Act.
40. The Court of Appeal took the view, that the dispute raised in the matter had a constitutional connotation and could not be said to strictly fall under section 12 of the Employment Act. The Court of Appeal pointed out that jurisdiction of the ELRC is limited rather than unlimited and that whereas the ELRC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on employment and labour relations, the ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution.
41. In County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested party) [2022] KESC 66(KLR), the Supreme Court stated:
On the question of the appropriate forum of the dispute, the trial court found that the question of enforcement of rights and fundamental freedoms even touching on the employment and labour is within the competence of the High Court pursuant to article 22. We are inclined to agree with the trial court and add that articles 23 and 165 of the Constitution fortifies this position as they are the provisions that give the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights and fundamental freedoms in the Bill of Rights.
42. In addition to the above pronouncement, one must also pay close attention to Article 165(3)(d) which confers on this court jurisdiction to hear any question respecting interpretation of the Constitution, including the determination of the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.
43. In the present petition, the petitioner argued that the issues raised are on violation of the Constitution, the law and fundamental rights and freedoms. According to the petitioner, the issues that the Court is required to determine, include whether the respondents could suspend him in the manner they did without giving him a hearing. The petitioner further argued that he is not an employee of any of the respondents and that section 3(1) (c) of the Employment Act does not apply to NYS and by extension, to him.
44. I have carefully read the petition and the issues raised. The issues do not include determination of employer–employee relationship or related matters. Rather the issues are purely on the interpretation of the Constitution and the law, namely; whether the respondents could act as they did and if indeed the petitioner’s rights and fundamental freedoms were violated. In other words, this Court is called upon to determine whether the respondents’ actions were constitutional and lawful. As a matter of fact, there is no employer-employee relationship issue in this petition, except the constitutionality and legality of the respondents’ impugned actions. That is; the petition challenges what the petitioner perceives to be constitutional and legal infractions thereby, questioning the constitutional validity and legality of those actions.
45. Section 3(2)(c) of the Employment Act excludes the National Youth Service from the application of that Act. This does not however mean that issues of employment cannot be raised with ELRC in appropriate cases.
46. As already stated earlier, under article 165(3)(b) and (d) of the Constitution, this Court is given express jurisdiction to hear any question on violation of rights and fundamental freedoms and the interpretation of the Constitution, including determination of questions whether anything said to be done under the authority of the Constitution or of any law, is inconsistent with, or in contravention of, the Constitution.
47. In so far as this petition is concerned, this Court will have to determine whether anything that was said to have been done by the respondents under the authority of the Constitution or the law, is inconsistent with or in contravention of the Constitution, the law or the petitioner’s rights and fundamental freedoms which falls within the jurisdiction of this Court.
48. In other words, the petition seeks this Court’s determination of whether the respondents’ actions were within the framework of the Constitution and the law thus, falling within the exclusive jurisdiction of this Court. There are also questions regarding actions or omissions on the part of the respondents which also call for interpretation of the Constitution and the law.
49. In the circumstances, I find and hold that this Court has jurisdiction to hear and determine this petition.
Violations
50. Having disposed of the issue of jurisdiction, the next question is whether the respondents’ action violated the Constitution, the law or the petitioner’s rights and fundamental freedoms. The petitioner argued in the affirmative while the respondents took the opposite view. The petitioner argued that the 3 rd respondent unlawfully suspended him from duty at the behest of the other respondents in contravention of Articles 10, 25, 41, 47, 50 and 73 of the Constitution.
51. EACC obtained search warrants on the basis that it had received information that an official had acquired public money between January 2017 and March 2025 and that the petitioner was a proxy of that official. EACC wanted to search the petitioner’s office, business and residence to gather documentary evidence to assist in the investigations. The Magistrate’s court issued search warrants and directed that a progress report be filed in Court on 15 th May 2025. The petitioner stated that no report was filed as directed and the petitioner argued that the respondents’ actions unlawful.
52. On 19 th May 2025, the 5 th respondent informed the 3 rd respondent about a statement by EACC that it was investigating members of the Service for suspected offences of conflict of interest and abuse of office which are cognizable offences under sections 42 and 46 of the EACC Act and directed the 3 rd respondent to submit information regarding disciplinary action taken against the petitioner.
53. On 29 th May 2023, the 3 rd respondent sent the petitioner on compulsory leave and on 25 th June 2025, following the Council’s meeting, the 3 rd respondent suspended the petitioner from duty for a period of 6 months until further notice. The petitioner argued that these actions were not only in disregard of the, but also violated his rights and fundamental freedoms.
54. I have considered the arguments by parties and perused the record. The EACC commenced investigations against members of the Service for suspected conflict of interest and abuse of office(corruption) within the Service. The EACC obtained search warrants authorizing searches and seizure of documents from the petitioner’s office, residence and business premises which may be relevant in its investigations. In the meantime, the petitioner was asked to take leave pending investigations, but was later suspended for six months.
55. Section 5 of NYS Act establishes NYS as a disciplined Service. Members of the Service consist of officers of the ranks specified in the First Schedule. These ranks are: Gazetted Officers, that is the Director General to Superintendents; Inspectorate Officers-Chief Inspectors to Cadet Inspectors; and Subordinate Officers-Senior Surgent to privates. The Act applies to these officers of the Service and also those who may be seconded to the Service.
56. Section 33 of the Act is on discipline. Section 33(2) provides that a member of the Service who commits any of the acts set out in the Fourth Schedule commits an offence against discipline. Subsection (3) provides that a member of the Service who commits an offence under any other written law “ shall be liable to proceedings in a court of law in accordance with the provisions of the law under which the offence was committed.”
57. Further, section 33(4) provides:
Despite the provisions of subsection (3), the Director-General or an officer authorised in writing by the Director-General may, for cause, take such disciplinary action as may be appropriate in the circumstances against a member of the Service who commits an offence under this Act or any other written law.
58. On the other hand, section 42 of the EACC Act is on conflict of interest. Section 42 (3) provides that an agent of a public body who knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body is guilty of an offence. Section 46 of the same Act provides that a person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence.
59. The gravamen of the petitioner’s case is that the 3 rd respondent had no mandate to send him on compulsory leave and later to suspend him for six months. The actions, the petitioner argued, were in violation of the Constitution, the law and his rights and fundamental freedoms. The petitioner cited Articles 10, 25, 41, 47, 50 and 73 of the Constitution in that regard.
60. The petitioner stated that he is a member of the Service and gave his Service Number. For purposes of the NYS Act, members of the Service, include those who are seconded to the service so that the Act applies fully to such a member as members of the Service. The petitioner did not argue that the Act does not apply to his as a member of the Service.
61. Article 10 is on national values and principles of good governance. Article 10(1) stated that values and principles in article 10(2) binds all person in the performance of their duties while article 10(2) enumerates the values and principles of good governance, including the rule of law, human dignity, and human rights. Article 25 is on human rights and fundamental freedoms that may not be limited, including the right to a fair trial. Article 41 is on the right to fair labour practices; article 47 on the right to administrative action; article 50 of the right to fair hearing while article 73 is on responsibilities of leadership.
62. These articles must be looked at and appreciated in the context of the facts of this petition, that the actions complained of were preliminary and subject to investigations that were being undertaken at the time the petition was filed and in particular, whether the 3 rd respondent could act as he did at the time.
63. To determine whether the 3 rd respondent properly acted, as he did, the starting point must be the action taken by the EACC. The EACC filed an application in court Misc. Application No. E 609 OF 2025, seeking an order for search warrants. The petitioner was the respondent in that application. The petitioner attached a copy of the supporting affidavi
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