REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E118 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PHELIX OYUGI OMONDI …………………………....…..1ST PETITIONER
KELVINE ONYANGO OTIENO…………………………….2ND PETITIONER
VERSUS
THE ATTORNEY GENERAL………………………...…1ST RESPONDENT
THE INSPECTOR GENERAL NATIONAL POLICE SERVICE…………………………………………………..…..2ND RESPONDET
THE DIRECTOR
DIRECTORATE OF CRIMINAL INVESTIGATIONS………………………………………3RD RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS…….4TH RESPONDENT
THE CHIEF OF STAFF AND HEAD OF PUBLIC SERVICE…………………………………………………….5TH RESPONDENT
THE PUBLIC SERVICE COMMISSION ………………6TH RESPONDENT
CABINET SECRETARY MINISTRY OF ENERGY AND PETROLEUM……………………………………………….7TH RESPONDENT
RULING
The Applicants/Petitioners filed the instant suit on 16th April 2026 under certificate of urgency seeking various reliefs including conservatory orders to suspend or stay implementation of the Notification of Presidential action No. III of 2026 dated 4th April 2026, conservatory order restraining the respondent by themselves or agents or servants from giving any further legal, administrative or public effect of the purported resignations, a conservatory order restraining the Respondents from commencing, advertising, shortlisting interviewing appointing or nominating, recruiting, replacing or filling the office of Principal Secretary, State Deportment of Petroleum Managing Director Kenya Pipeline PLC and Director General, Energy and Petroleum Regulatory Authority (EPRA) pending the hearing and determination of the Application dated 16th April 2026 and/or the petition among other orders.
When the matter came up on 17th April 2026 the court did not certify it urgent but issued directions on service, response and inter partes hearing on 29th April 2026 when counsel for the 9th Respondent informed the court that he had filed a Notice of Preliminary Objection and directions on its canvassing by way of written submissions were issued and a mention on 21st May 2026 when counsel for the 1st, 2nd, 3rd, 5th, 7th and 8th Respondent’s indicated that they had filed a Notice of Preliminary Objection challenging the applicants locus standi to institute and/sustain the suit, as he was neither an employee of the respondents nor party to the resignations and the persons had not demonstrated lack of capacity or standing to file any grievance in court, lack of any recognisable interest and no constitutional or statutory violations had been demonstrated.
That the petitioner was seeking to litigate contractual rights to which they are strangers and that the petition was premature.
The 9th Respondent’s Notice of Preliminary Objection dated 29th April 2026 is grounded on the following reasons.
The court has not jurisdiction to hear and determine the petition under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
The two Notices of Preliminary Objection are challenging the courts jurisdiction to hear, determine the instant petition and locus standi and prematurity of the petition.
9th Respondent’s submissions the petition
Counsel reasoned that since the issue raised by the petitioners related to the manner of exercise of police powers under the Constitution of Kenya, the National Police Service Act and prosecutorial powers under Article 157 of the Constitution of Kenya, this court had no jurisdiction to hear and determine the petition. That the High Court had jurisdiction.
Counsel submitted that the Employment and Labour Relations Court enjoyed limited jurisdiction by dint of the provisions of Article 162 (2) (a) of the Constitution of Kenya and Section 12(1) of the Employment and Labour Relations Court Act in that it can only hear and determine disputes relating to “employment and labour relations and connected purposes” and the alleged arrest, confinement at Gigiri Police Station, evidence of arrest were beyond the purview of the court’s jurisdiction.
Reliance was placed on the sentiments of the Supreme Court in Samuel Kamau Macharia & another v. Kenya Commercial Bank & 2 others (2012) eKLR on the sources of a court’s jurisdiction, to urge that the jurisdiction of the ELRC was limited.
Reliance was also placed on the decision in the Matter of the Interim Independent electoral Commission (2011) KESC 1 (KLR) as well as Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others (2019) eKLR and Maseno University v Professor Ochong, Okello (2012) eKLR on the nature of a contract of employment.
The decisions in Kadamas & another v Municipality of Kisumu (1985) eKLR was cited to urge that the rights allegedly violated were private to the person arrested not public and the circumstances in which the alleged resignations took place had not been placed before the court. That courts of law do not act on speculation and conjecture as held in Peter N. Migwi Kangethe v John Githua Wahome (2008) eKLR. Counsel the court to strike out the petition and not transfer it to another court citing the Court of Appeal decision in Equity Bank Ltd v Bruce Mutie Mutuku t/a Diani Tours & Travel (2016) eKLR.
Counsel urged that the court had no jurisdiction to hear and determine the petition.
1st, 2nd, 3rd, 5th, 7th and 8th Respondent’s submissions
On locus standi or standing, counsel submitted that the petitioners had no locus standi to institute and sustain the instant petition and application on behalf of individuals who were capable of suing to enforce their rights.
That the subject matter of the petition related to private rights between distinct persons and the petitioners were neither parties to the contracts of employment not employees of the respondents.
Reliance was placed on the decisions in Savings and Loans (K) Ltd v Kanyenje Karangaita Gakombe & another (2015) KECA 784 (KLR) on privity of contract, Kerongo & 2 others v Nyaonga & 5 others (2021) eKLR, Law Society of Kenya v Commissioner of Lands & 2 others (2003) eKLR and Mumo Matemu v Trusted Society of Human Rights alliance & 5 others (2013) KECA 445 (KLR) for the proposition that judicial intervention was reserved for bona fide litigants and not “busy bodies” and “meddlesome interlopers”
Counsel submitted that the petitioners had not demonstrated that the provisions of Article 22 and 125 of the Constitution of Kenya were applicable bearing in mind that the rights allegedly violated were private.
As to whether the petition was premature and incompetent, counsel submitted that it was in that the petitioners had not complied with the provisions of the Access to Information Act and there was no evidence of any written request prior to the filing of the suit.
Reliance was placed on the decisions in Speaker of the National Assembly v Karume (1992) eKLR, Okioma & 12 others v Kagwe & others (2023) KEHC 22245 (KLR), Nairobi Law Monthly Co. Ltd v Kenya Electricity Generating Co. & 2 others (2013) KEHC 6054 and (KLR) Katiba Institute v President’s Delivery Unit & 3 others (2017) KEHC 2183 (KLR).
Other decisions cited on the doctrine of exhaustion were Kiriro Wa Ngugi & 19 others v Attorney General & 2 others, (2020) eKLR, Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others, Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others (2016) eKLR, to urge that the instant petition was based on mere apprehension rather than, facts and it was hypothetical.
Petitioners written submissions
On jurisdiction, reliance was placed in the Mukisa Case (Supra), Oraro v Mbaja (2005) KLR 141 and IEBC v Jane Cheperenger & 2 others, to urge that a Preliminary Objection must be based on a point of law and submit that the Notices of Preliminary Objection herein did not meet the threshold of a Preliminary Objection and the issues raised were labour related.
On the court’s jurisdiction counsel, cited the decisions in United States International University (USIV) v Attorney General (2012) eKLR, Daniel N. Mugendi v Kenyatta University & 3 others (2013) eKLR, Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others (2010) eKLR and International Centre for Inspect Physiology & Ecology v Nancy MCNally (2018) eKLR to submit that the petition raised constitutional issues over which the court had jurisdiction to hear and determine by dint of Article 162 (2) (a) of the Constitution of Kenya.
On locus standi reliance was placed on the provisions of Article 22 and 258 of the Constitution of Kenya and the decisions in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2014) eKLR to submit that the constitution had broadened locus standi.
Also cited was the decision in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others (2017 eKLR to urge that every person may move a court of law where bill of rights have been infringed and in this case the petitioner were seeking vindication of cconstitutional values and public administration among others and the court should find that the petitioners had standing.
On privity of contract, counsel submitted that the petitioners were challenging the constitutionality of a public chain of conduct allegedly used to procure resignations from public office and the petitioners did not have to be parties to the contracts of employment.
On access to information counsel submitted that the instant petition was a stand-alone Article 35 access to information suit because the primary complaint was the alleged unconstitutional use of arrest, confinement, intimidation and administrative action to procure or validate resignations from public office without due process.
That there was need to preserve and produce records and the doctrine of exhaustion is not applied mechanically. Decisions in Muthinja Kabiru & 2 others v Samuel Munga Muguna & 1756 others (2015) eKLR and Mutanga Tea & Coffee Co. Ltd v Shikara Ltd & another (2015) eKLR among others were relied upon.
Counsel urged that the decisions in Nairobi Law Monthly Co. Ltd v KENGEN & 2 others (Supra) and Katiba Institute v Presidents Delivery Uvil & 3 others (Supra) were distinguishable.
Concerning ripeness of the petition, counsel submitted that it was ripe as the resignations were announced as having been received thus there was a real controversy on whether criminal and official power were used to procure the resignations and the petition was not speculative and the petition was not seeking enforcement of contractual benefit but public power.
Finally, counsel submitted that the Preliminary Objections were misconceived.
Analysis and determination
It is trite that the most often cited rendition on what constitutes a Preliminary Objection are the sentiments of Law JA and Sir Charles Newbold P in the Mukisa case (Supra).
In Attorney General & another v Githinji and another (2016) KECA 817 (KLR), the Court of Appeal stated as follows:
“The test to be applied in determining whether the appellants Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (Supra). This is first that the Preliminary Objection raises a pure point of law, second that there is demonstration that the facts pleaded by the other side are correct and third that there is no fact that needs to be ascertained.”
In the courts view granted that the respondents are challenging the courts jurisdiction to hear and determine the Petition, the court is satisfied that the two Notices of Preliminary Objection meet the test in the Mukisa Case (Supra).
It is trite law that jurisdiction is everything and without it a court cannot make one more step as aptly captured by Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd (1989) 1 KLR and expounded in countless decisions including Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others (Supra), where the Supreme Court emphasized that the sources of a court’s jurisdiction were the constitution or legislation or both.
Similarly, it is trite law that the Employment and Labour Relations Court (herein after ELRC) derives its jurisdiction from Article 162 (2) (a) of the Constitution of Kenya and the provisions of section 12 of the Employment and Labour Relations Court Act and other Acts of Parliament including the Work Injury Benefits Act (WIBA) and there is substantial case law on this issue.
Simply put, the ELRC has jurisdiction to hear and determine all disputes or grievances relating to employment and labour relations and connected purposes and this includes jurisdiction to enforce violations of the constitution and Bill of rights where the issue in question is incidental to a dispute relating to employment and labour relations.
In Karisa Chengo & 2 others v Republic the Court of Appeal stated;
“Section 12(1) sets out the court’s jurisdiction in the following terms;
“The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including…”
(Emphasis added).
Similarly in Paramount Bank Ltd v Vagvi Syed Qamara & another (2017) eKLR the Court of Appeal stated:
“The preamble of Employment and Labour Relations Court Act states that the court is established to hear and determine disputes relating to “employment and Labour Relations”, and “for connected purposes” among its powers under section 12 the court hears and determines all disputes relating to and arising out of employment and labour relations. In exercise of that jurisdiction, the court has power to award compensation or damages in any circumstances contemplated under the Act or any other written law and to grant any other appropriate relief that it may deem fit.”
In Hassan Magiya Kiage v Attorney General & another (2017) eKLR the Court of Appeal rendered itself as follows;
“From the foregoing, it is clear to us that the ELRC is clothed with jurisdiction to entertain not only employment and labour disputes but also any incidental issues(s) that may arise or is connected to employment or labour relations.”
Finally in Prof. Daniel N. Mugendi v Kenyatta University & others (Supra) the court held that the ELRC had jurisdiction to adjudicate upon issues of violation of constitutional rights citing with approval the sentiments of Majanja J in United States International University (USIU) v the Attorney General (Supa) where the learned judge observed that;
“Since the Court is of the same status of the High Court, it must have jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret the constitution and fundamental rights and freedoms is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling withing the provisions of section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce, not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the constitution within the matter before it.”
Finally, in Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (2024) KESC 3 (KLR) the Supreme Court held;
“From the above provisions of the constitution and the Act, it is clear that the jurisdiction of the ELRC is limited in terms of the types of disputes and the parties…
In our view there is nothing in the constitution, the ELRC Act, or indeed in our decision in Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations the ELRC court is precluded from determining the constitutional validity of a statute. This is specially so if the statute in question lies at the centre of the dispute. What it cannot do is to sit as if it were the Hight Court under article 165 of the constitution and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and Labour Relations within the context of the ELRC Act. But if at the commencement or during the determination of a dispute falling withing its jurisdiction as reserved to it by article 162 (2) (a) of the constitution a question arises regarding the constitutional validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue…”
Applying the foregoing propositions of law to the circumstances of the instant petition the following is discernible.
The list of the parties sued reveals that the employers of the officers concerned are not the focus of the petition and are named as the 7th, 8th and 9th Respondents, a clear indication as to who the principal Respondents are namely; Attorney General, National Police Service Director Directorate of Criminal Investigations Director of Public Prosecutions and the Chief of Staff and Head of Civil Service. The 1st, 2nd, 3rd, 4th and 5th Respondents had nothing to do with the employment of the officers in question.
Relatedly, even as regards the 8th and 9th Respondents, it is the Boards of Directors that are sued not the employers concerned.
In the court’s view, the petitioners did not envision the enforcement of rights or fundamental freedoms grounded on an employment or labour relations dispute.
The reliefs sought too are grounded on matters other than employment and labour.
Significantly, the petitioners only evidence and foundation of the instant petition is the press release by the Chief of Staff and Head of Civil Service dated 4th April 2026 and are endeavoring by the petition to secure evidence to justify their case.
In the courts view and as averred and submitted by the Respondents, the petitioners have failed to demonstrate that their complaint is grounded on “employment or labour relations or connected purpose”
In the courts understanding and assessment, the petition is grounded on exercise of public power as the petitioners admit, but disguised as an employment related dispute.
The rights allegedly violated were personal and cannot in the courts view be remedied at the instigation of 3rd parties whose locus standi is contested.
From the foregoing, it is discernible that the court is in agreement with the 1st, 2nd, 3rd, 5th, 7th, 8th and 9th Respondents that the court has no jurisdiction to hear and determine the instant petition and it is accordingly struck out.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29TH JUNE, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI PET E118 OF 20262 OF 14 |