REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
JR NO. E041 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PROFESSOR MARY ABUKUTSA-ONYANGO……………..… PETITIONER
VERSUS
PUBLIC SERVICE COMMISSION OF KENYA & MASENO UNIVERSITY………………………………………..….……...... RESPONDENT
RULING
Before the court for determination is the 2nd Respondent’s Notice of Motion dated 14th May, 2026 filed under Certificate of Urgency seeking orders that;-
1. Spent.
2. The court be pleased to set aside the order of stay of the recruitment process for the position of Vice Chancellor of Maseno University given on 27th April, 2026.
3. The costs to abide in the cause.
The Notice of Motion is expressed under section 3(1) and (2) of the Employment and Labour Relations Court Act and Rule 17(7) of the Employment and Labour Relations Court (Procedure) Rules and is based on the grounds outlined on its face and the Supporting Affidavit sworn by Professor Erick Nyambedha on 14th May 2026.
The affiant deposes that he is the acting Vice-Chancellor of Maseno University. He further depones that pursuant to the directions of the court on 16th April 2026, the applicant effected service via emails info@maseno.co.ke and ecompas@compus.maseno.co.ke which are emails for general inquiries and not listed as the University’s email for purposes of service. That its email for litigation is legal@maseno.ac.ke managed by its legal department and thus no service was effected upon the 2nd Respondent and no effort was made to effect physical service and as a consequence, the 2nd Respondent was denied audience when the matter came up for inter partes hearing and leave was granted on 27th April 2026 and a mention was slated for 8th June 2026. The affiant deposes that had the 2nd Respondent been served properly, it could have highlighted the precarious position it was in and the need to have a substantive Vice-Chancellor of the University, which is exacerbated by the reality that the term of the University Council lapses on 21st May 2026, and it appoints the Vice-Chancellor.
The affiant deposes that the court has no jurisdiction to entertain the matter owing to the absence of an employer/employee relationship.
According to the affiant operations of the University would be adversely affected and teaching would be disrupted and public interest was in favour of preserving institutional operations of the 2nd Respondents.
Respondent’s case
The ex parte applicant responded to the instant application by way of a Preliminary Objection and grounds of opposition.
The ex parte applicant contended that the instant application was fatally defective because the advocates for the 2nd Respondent Saroni & Stevens Advocates were not properly on record and had no Locus Standi to file the instant application by dint of a conservatory order in Nakuru High Court Petition No. E001 of 2026 Magare Gikenyi & others v Council of Governors & others which prohibited public entities, including the 2nd Respondent/Applicant from engaging private advocates where legal officers or the Attorney Generals office are available, unless express approval from the Attorney General was obtained and none had been demonstrated.
That the application offended Order 9 Rule 1(b), 5, 6 and 9 of the Civil Procedure Rules and the court is functus officio in respect of the question of grant of leave and stay orders and the application was not brought timeously and the Chamber Summons was properly served electronically under Order 5 Rule 22B of the Civil Procedure (Amendment) Rules, 2020.
That the 2nd Respondent’s Objection to the court’s jurisdiction was a non-starter on account that the matter was transferred by Hon. Justice W. Musyoka at the Milimani High Court (JR Division) in HCJR MISC/e056 OF 2026 on 14th April 2026 on the courts own motion and this court had jurisdiction to hear and determine the suit.
In her Grounds of Opposition dated 15th May 2026, the Ex parte applicant contended that the 2nd Respondent’s counsel was improperly on record because the 2nd Respondent was estopped from engaging the law firm of Saroni and Stevens Advocates and inter alia there was no consent from the previous counsel on record.
That service of the application for leave was proper and the stay order was in the public domain on 16th April 2026 and no prejudice would be occasioned as the stay order was temporary and the balance of convenience was in favour of the applicant.
When the matter came up for hearing 20th May, 2026 Mr. Odukenya, counsel for the 1st Respondent informed the court that he was not opposed to the application and requested for a mention date to enable him file a response.
Counsel for the 2nd Respondent/Applicant and the Ex parte applicant made oral submissions.
Counsel for the 2nd Respondent submitted on several issues namely; provisions of Rule 17(7) of the ELRC Rules and Order 45 Rule 1 of the Civil Procedure Rules, whether the applicant had sufficient reasons for review of stay orders, public interest, service of the application and prejudice to the ex parte applicant.
On service counsel submitted that the Affidavit of Service dated 17th April 2026 revealed that service was effected via general emails of the 2nd Respondent contrary to Order 5 Rule 3 of the Civil Procedure Rules which prescribe service upon a corporation and no physical service was effected as Order 5 Rule 22B of the Rules did not repeal Order 5 Rules 3 of the Civil Procedure Rules.
On public interest, counsel urged that the term of the 2nd Respondent’s Council would lapse on 21st May 2026, the term of Acting Vice-Chancellor of the University would lapse in July 2026 and in any event no prejudice or hardship would be suffered by the ex parte applicant if the orders issued on 27th April 2026 were reviewed.
Simiyu for the Ex parte applicant submitted that the 2nd Respondent’s counsel was not properly on record since the 2nd Respondent filed a Notice of Appointment of Advocates, and more significantly the conservatory orders in Nakuru High Court Petition E001 of 2026 prohibited the 2nd Respondent from engaging external counsel unless permission had been granted by the office of the Attorney General and the counsel had not filed a consent or permission of the Attorney General. Counsel, further urged that there was inordinate delay in the filing of the instant application since leave was granted on 27th April 2026 and service of the Ex parte application was proper.
That leave stage in judicial review proceedings is typically ex parte but in this instance parties have heard and a ruling delivered.
On jurisdiction of this court to hear and determine the suit counsel submitted that the matter was transferred from the High Court and there would be no other court to hear it. Counsel prayed that the pleadings by Mr. Ogolla be struck out and the earlier directions proceeded with.
In a rejoinder, Mr. Ogolla contended that the application sought to have the order of stay set aside. On representation, counsel submitted that nothing prevented a state corporation from engaging counsel and seek concurrence of the Attorney General and the 2nd Respondent could seek concurrence.
Analysis
For contextual purposes the instant proceedings were instituted vide the Ex parte Chamber Summons dated 14th April 2026 seeking leave to file Judicial Review proceedings and leave was granted vide ruling delivered on 27th April, 2026 and it was to operate as a stay.
This is the order the applicant seeks reviewed and set aside.
It is trite law that this court has jurisdiction to review its orders. Section 16 of the Employment and Labour Relations Court Act provides that;
The court shall have power to review its judgments, awards orders or decrees in accordance with the rules.
Section 80 of the Civil Procedure Act contains similar provisions as does Rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024, which prescribe the circumstances in which the court may review its orders. Similar provisions are contained in Order 45 Rule I of the Civil Procedure Rules.
Paradoxically, the applicant’s counsel is challenging the jurisdiction of the court and simultaneously seeking a review of its order made on 27th April, 2026.
The Ex parte applicant challenges the averment on jurisdiction with reality that the instant suit was filed at the High court as HCJR E056 of 2026 but the court transferred it to this court Suo motu for hearing and determination.
While a transfer cannot confer jurisdiction upon a court of law, the learned judge of the High Court was acknowledging the proposition that the Employment and Labour Relations Court had jurisdiction to hear and determine suits relating to prospective employees which is exemplified by the provisions of section 5 of the Employment Act which outlaws discrimination at the work place including in pre-employment processes, such as short listing of applicants and selection among others.
Section 5(7) of the Act provides that;
“For the purpose of this section –
(a) “employee” includes an applicant for employment
(b) employer includes an employment agency
(c) an “employment policy or practice” includes any policy or practice relating to recruitment procedure advertising and selection criteria appointments and appointment process…”
These explanations supplement the provisions of section 2 of the Employment Act.
In the court’s view, parliament could not have intended to prohibit discrimination of applicants for employment but excluded them in other aspects of employment.
Relatedly, the jurisdiction of the court is not determined exclusively on the provisions of section 12(1) of the Employment & Labour Relation Court Act cited by the applicant. The list of ten (10) examples under section 12 of the Act is not exhaustive as the provision uses the term “including.” Secondly, the jurisdiction of the ELRC emanates from the Provisions of Article 162 (2) (a) of the Constitution of Kenya.
Thirdly, the Preambular provision of the Employment and Labour Relations Court Act is unambiguous that it is;
“An act of parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and Labour and for connected purposes.”
In the court’s view processes preceding conclusion of a contract of service are matters connected to employment. Indeed, declaration of vacancy advertisement, submission of applications, contents of the advertisement, shortlisting handling of applications including communicating with applicants, interview and appointment are inseparable from employment or rejection of the application.
The foregoing is fortified by the decision in Stanley Mungai Muchai v National Oil Corporation (2012) eKLR, where the Court of Appeal held;
“The jurisdiction of the Employment and Labour Relations Court extends to all disputes relating to employment and labour relations. Personal jurisdiction is no longer confined to employers and employees but to all persons implicated in an employment and labour relations dispute”
Similarly, in Hassan Magiya Kiage v Attorney General & another (2017) KECA 203 (KLR) the Court of Appeal held 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 inadental issue(s) that may arise or is connected to employment and labour relations. This in turn ensures the economic use of judicial time and resources.”
See also Paramount Bank Ltd v Vaqvi Qamara Syed & another (2017) eKLR United States International University (USIU) v Attorney General, AG & 2 others v Okiya Omtata & 14 others (2020) eKLR, Kenya Tea Growers Association & 2 others v National Social Security Fund Boad & 13 others (2023) KESC 63 (KLR) and Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR.
In a nutshell this court is satisfied that it has jurisdiction to hear and determine the instant suit.
This case turns on whether the 2nd Respondent’s Counsel is properly on record and whether the firm has locus standi to represent the 2nd Respondent.
It is common ground that one Joy Akoth Akinyi advocate filed a Notice of Appointment of Advocates dated 4th May, 2026 several days after the courts Ruling. According to the notice, the advocate works at the 2nd Respondent’s Legal Department. The Notice was filed on 7th May 2026 and provided an email address for service i.e. legal@maseno.ac.ke. No other document was filed by counsel.
Intriguingly, the firm of Saroni & Stevens Advocates filed a Notice of Appointment dated 13th May 2026 on even date indicating that the 2nd Respondent had appointed the firm to act for it in the matter.
According to counsel for the ex parte applicant, the firm was not properly on record because the 2nd Respondent had another counsel on record and no Notice of Change of Advocates was filed or other consent for the law firm to act for the 2nd Respondent.
The firm of Saroni & Stevens Advocates provided no evidence of Notice of Change of Advocates or other legal authority to file the instant application.
Order 9 rule 5 of the Civil Procedure Rules provides:
A party suing or defending by an Advocate shall be at liberty to change his advocate in any cause or matter without an order for that purpose, but unless and until notice of change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to the rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter including any reviews or appeal.
Under Order 9 rule 6;
The party giving the notice shall serve on every other party to the cause or matter not being a party in default as to entry of appearance and on the former advocate a copy of the endorsed with a memorandum stating that the notice has been duly filed in the appropriate court (naming) it. Neither of the provisions of Rules 12 or 13 of Order 9 of the Civil Procedure Rules applied in the instant case and neither the firm of Saroni and Stevens Advocates nor Joy Akoth Akinyi provided evidence to demonstrate that the provisions of Order 9 rule 5 of the Civil Procedure Rules had been complied with.
In Nicholas Omondi v A Rocha Ltd (2016) KECA 140 (KLR) James Otieno Odek JA held;
“…Failure to file the notice of change renders the amended notice of motion dated 10th May 2016 to be incompetent and not properly on record. I hereby make a finding that the applicants notice of motion dated 10th May 2016 is incompetent and is hereby struck out… the final order is that the amended Notice of Motion dated 10th May 2016 be and is hereby struck out and dismissed with costs.”
In Kirima & another v Mungania (2025) KEHC 7223 (KLR) Mulwa J stated;
“The rule is not explicit on the effect of documents and court process filed in the absence of Notice of change of Advocates. In my view as the filing of a notice is simply to notify the other parties as well as the court who then becomes in charge of a party’s case. Non-adherence may lead to consequences including striking out of the proceedings or pleading. The court must however always balance the scales of justice as well as the scales of prejudice.”
In that case, the Plaintiffs had filed a Notice of change of Advocates late and the Defendants application to have the Plaintiff’s advocate deemed not properly on record failed.
Finally, in Mohamed Salim t/a choice Butchery v Nasser Puria Memon Jamat (2015) KEHC 3136 (KLR) Mary Kasango J expressed herself as follows;
“What is the consequence of that delayed filing the notice of change of advocates and failure to serve a notice of change of advocates? In my view, it is fatal to any application or document filed by an advocate who has not filed their notice of change of advocate. It is not enough for the firm of Y.A. Ali & Co. Advocates to rely on the order granting them leave to take over the conduct of the appellant’s case. The Rules of procedure specifically required a firm to file a notice of change of advocate and serve other parties as required under Rule 6.
Appellant cannot seek to shield himself from the requirement of Order 9 Rules 5 and 6 by relying on Article 159 (2) (d) of the Constitution. If that was to be allowed then the end result would be to do away with Rules of Procedure and each party be at liberty to adopt whatever procedure he desires. That would not be just on this. I wish to rely wholly on the Court of Appeal’s holding in the case Telkom Kenya Ltd v Jono Chanda (2014) eKLR as follows…”
The foregoing articulations leave no doubt as to how a court ought to address the failure to file and a Notice of change of Advocates as it was in the instant suit. The instant Notice of Motion is liable for striking out for non-compliance with Order 9 Rule 5 and 6 of the Civil Procedure Rules.
Closely related to the foregoing, counsel for the ex parte applicant contended that the 2nd Respondent’s counsel had no locus standi by dint of conservatory orders issued in Nakuru High Court Petition No. E001 of 2026 Magare Gikenyi & others v Council of Governors & others.
By orders dated 11th January 2026, Justice Mohochi Samwel Mukira stated inter alia
“(e ) A conservatory Order is hereby issued suspending the engagement, procuring, continuing to procure pending payments, all engagements or private advocates/law firms by all public entities when there is already hired Attorney General, State Counsels, Solicitor General, County Attorneys County Legal Attorneys, Legal Officers and Legal Personnel of ALL Public entities pending the hearing and determination of this Application and the Petition.”
(f) A conservatory Order is hereby issued directing the Controller of Budget and all Public Servants (whether state officer or public officer) or any person Not to approve any vote/funds for acquisition of extenal legal services/advocates/firms for ALL public entities, pending the hearing and determination of this Application and the Petition.”
The foregoing Orders were crystal, clear and require no elaboration.
Although counsel Ogolla submitted that there was no order preventing a state corporation such as the 2nd Respondent from engaging counsel and all that was necessary was to seek clearance of the Attorney General or concurrence, there was no evidence on record of any consent, concurrence or approval by the Attorney General authorizing the 2nd Respondent to engage external counsel in this matter.
It is thus unclear as to how the services of the firm of Saroni & Stevens Advocates was procured in light of the conservatory orders above. It is not in dispute that the 2nd Respondent is a public entity funded by monies appropriated by the National Assembly and to its credit, it has an established Legal Department whose able advocates routinely represent it in judicial proceedings.
Having found that, counsel for the 2nd Respondent was not properly on record for failure to file and serve a Notice of Change of Advocates and the 2nd Respondent tendered no evidence as to how it bypassed the conservatory orders in Nakuru High Court Petition No. E001 of 2026, it is clear that the applicant’s Notice of Motion dated 14th May 2026 is unsustainable and it is accordingly struck out.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25th DAY OF APRIL, 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 E041 OF 20262 OF19 |