[1] This ruling is in respect of the Preliminary Objection filed herein by the 1st and 5th respondents vide their Notice of Preliminary Objection dated 25th March 2026. The 1st and 5th respondents (hereinafter, “the respondents”) thereby contended that:
[a] The Petition is vexatious, frivolous, and an abuse of the process of the Court in that it was instituted without reasonable cause, motive, or legal basis.
[b] The Petition is vague and incompetent for want of precision in pleading the alleged constitutional violations, contrary to the principle in Anarita Karimi Njeru v Republic [1979] eKLR.
[c] This Court lacks jurisdiction to entertain the Petition and the Notice of Motion, the issues raised therein being premature, speculative and non-justiciable as no actual or crystallized constitutional violation has arisen from the impugned process.
[d] The Petition lacks jurisdictional competence, as the issues raised by it relate to employment and labour relations in so far as they concern the nomination, vetting, approval and appointment of public officers to the County Executive Committee; issues which fall within the exclusive jurisdiction of the Employment and Labour Relations Court pursuant to Article 162(2)(a) of the Constitution of Kenya.
[e] The Petition offends the doctrine of exhaustion, in that the Petitioner has failed to invoke and/or exhaust the constitutionally and statutorily prescribed procedures governing the nomination, vetting, approval and public participation processes as provided under the County Governments Act, 2012, the Public Appointments (County Assemblies Approval) Act, 2017, and the applicable Standing Orders of the County Assembly of Homa Bay.
[f] The Petition offends the doctrines of ripeness and constitutional avoidance, in that it invites the Court to prematurely determine issues arising from an ongoing constitutional and statutory process before the same has been concluded and a concrete and justiciable constitutional violation has crystallized.
[g] The Petition violates the doctrine of separation of powers by inviting this Court to interfere with and halt an ongoing constitutional and statutory process vested in the County Executive and the County Assembly.
[h] The Petition improperly seeks to constitutionalize an anticipatory grievance, including alleged non-compliance with the two-thirds gender principle and inclusion of persons with disabilities, which claims are premature and incapable of determination prior to the conclusion of the appointment process and full constitution of the County Executive Committee.
[i] The Petition fails to disclose a reasonable, specific and actionable constitutional cause of action, and is instead founded on generalized apprehensions and anticipatory claims, rendering it incompetent and unsustainable in law.
[2] Accordingly, the respondents prayed that the Petition be struck out in its entirety with costs for being premature, untenable in law, and for constituting a gross and manifest abuse of the due process of the Court.
[3] The brief background of the matter is that the petitioner filed the Petition dated 21st March 2026 seeking for declaratory and injunctive orders against respondents along with an interlocutory application seeking the halting of the appointment of the Deputy County Governor, the County Executive Committee Member for Trade, Industry, Tourism, Marketing and Cooperative Development; and County Executive Committee Member responsible for Governance, Administration, Communication and Devolution in the County Government of Homa Bay pending the hearing and determination of the Petition.
[4] In response thereto, the 1st and 5th respondents filed the Notice of Preliminary Objection dated 25th March 2026 which is the subject of this ruling. The Preliminary Objection was canvassed by way of written submissions pursuant to the directions given herein on the 9th April 2026. Hence, the respondents relied on their written submissions in which they proposed the following issues for determination:
[a] Whether the Preliminary Objection meets the threshold established in law.
[b] Whether the matter is sub judice.
[c] Whether the petitioner has exhausted all internal mechanisms as required by the law.
[d] Whether this has jurisdiction to hear and determine the suit.
[e] Whether the petitioner stands to suffer any irreparable damage.
[f] Who shall bear the cost?
[5] The respondent made reference to the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, and submitted that their Preliminary Objection adheres to the principle laid down in that case in so far as it raises issues of pure points of law, specifically the issue of lack of jurisdiction as the Court is barred by both constitution and statutes on the ground that the subject matter revolves around employment. They argued that Articles 162(2)(a) and 165 of the Constitution donate specific jurisdiction to each court established thereunder; and that a court cannot confer jurisdiction on its self.
[6] In the submission of the respondents, the issues raised by the petitioner in his application regarding the position of the Deputy Governor can only be competently addressed in an election court vide an election petition whereas issues raised relating to the County Executive Committee Members falls within the exclusive jurisdiction of the Employment and Labour Relations Court pursuant to Article 162(2)(a) of the Constitution of Kenya. They relied on Sections 4 and 12 of the Employment Act in support of their submissions.
[7] Further to the foregoing, the respondents submitted that, other than the issue of jurisdiction, the Petition raises other pertinent issues of law, namely:
[a] Whether the Petition meets the test for Constitutional Petition.
[b] Whether the Petition invokes the Principle of Constitutional Avoidance.
[c] Whether the petitioner exhausted the statutory remedies available before filing the instant Petition.
[c] Whether this Petition is sub judice
[8] According to the respondents, although the petitioner cited Articles 10, 21(3), 22, 23, 27, 54(2), 81(B), 179, 197(1), 232 and 260 of the Constitution in its title, little or no particulars were pleaded as to the manner of the alleged infringements; and therefore the Petition falls short of the very substantive test laid down in the case of Anarita Karimi Njeru v Republic [1979] 1 KLR 54 and reiterated in Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR. In their submission, the petitioner merely cited constitutional provisions without stating the manner of violation.
[9] On the principle of constitutional avoidance, the respondents submitted that not all claims that cite constitutional provisions necessarily amount to constitutional claims to qualify for filing as constitutional petitions. They urged the principle that where a dispute is one which can be determined under another area of law other than the constitution then it is best that the constitutional route be avoided. They relied on the decision of the Supreme Court in Communications Commission of Kenya and C O D & another v Nairobi City Water & Sewerage Co. Ltd [2015] eKLR to buttress their arguments.
[10] The respondents also submitted that the process of filling of a vacancy in the office of the constitutional office of the Deputy Governor is governed by Section 32D of the County Government Act No. 17 of 2012, which stipulates that the Governor is required to nominate a person for appointment as Deputy Governor within fourteen days (14) days. Thereafter the County Assembly is required under Section 32D(3) of the County Government Act to consider a motion for approval of the appointment and resolve whether to approve the nomination within fourteen (14) days and in default of such resolution within the said period , the nomination shall be deemed to have been approved upon lapse of the fourteen (14) days without the County Assembly making a decision.
[11] With reference to Section 7(10) of the Public Appointments (County Assemblies Approval) Act 2017, the respondents argued that prior to the approval hearing, the petitioner ought to have submitted a written statement on oath to the Clerk contesting the suitability of a nominees but failed to do so. They therefore urged the Court to find that there was a failure on the part of the petitioner to strictly comply with and exhaust the applicable law before approaching the Court for intervention.
[12] Lastly, the respondents submitted that the petitioner failed to disclose that the same matters in this instant suit are the subject of another case in another court, namely: Kisumu ELRC Petition No. E026 of 2026. Accordingly, they submitted that the instant suit is sub judice and an abuse of court process. They relied on Section 6 of the Civil Procedure Act and David Ndii & Others v Attorney General & Others [2021] eKLR, as to the object of sub judice rule, namely to prevent multiplicity of suits and conflicting decisions.
[13] On the basis of the foregoing submissions, the respondents urged for the dismissal of the Petition alongside the Notice of Motion dated 21st March 2026 with costs.
[14] On his part, the petitioner proposed the following issues for determination vide his written submissions:
[a] Whether the Petition is vague and incompetent for want of precision.
[b] Whether the Court has jurisdiction to entertain the present Petition.
[c] Whether the petition offends the doctrine of exhaustion.
[d] Whether the Petition offends the doctrine of separation of
Powers.
[e] Whether the Preliminary Objection is merited.
[15] On whether the Petition has been pleaded with the requisite specificity, the petitioner argued that the Court of Appeal in Mumo Maternu v Trusted Society of Human Rights Alliance [2013] eKLR clarified that, precision is not a formalistic or mechanical requirement; and that substance must prevail over form. He submitted that the Petition is compliant in so far as it clearly identifies the impugned Executive Order dated 16th March 2026 ; particularizes the nomination process and specifies the violated constitutional provisions, including but not limited to Articles 10, 27, 54, 81(b), 197(1), and 232 of the Constitution
[16] In the petitioner’s submission, the Petition herein is neither vague nor incompetent as it precisely sets out the constitutional violations and it therefore fully satisfies the threshold for constitutional petitions. In his view, it is sufficient that the Petition raises issues to do with violation of the two-thirds gender principle , inclusion of people with disabilities and violation of Article 10 of the Constitution.
[17] In response to the respondents’ contention that the matter falls under the jurisdiction of the Employment and Labour Relations Court, the petitioner relied on Trusted Society of Human Rights Alliance v Nakuru Water [2013] eKLR and submitted that the Petition challenges the constitutionality of appointments by the respondents and therefore falls within the jurisdiction of this Court. He contended, on the authority of USIU v Attorney General [2012] eKLR that the jurisdiction of the ELRC applies only where the dispute is primarily employment-based. In the petitioner’s view, the present Petition is purely constitutional, and therefore this Court is properly seized of jurisdiction.
[18] On the doctrine of exhaustion, the petitioner’s submission was that it is not absolute. He relied on Geoffrey Muthinja v Samuel Muguna Henry [2015] eKLR, and set out the exceptional circumstances that the Court ought to take into consideration, such as whether the matter raises constitutional issues; and whether the alternative remedies provided for are adequate. Reliance was also placed in Republic v IEBC ex parte NASA [2017] eKLR to support the argument that the County Assembly cannot determine issues to do with constitutionality or enforce fundamental rights; and therefore the doctrine of exhaustion is inapplicable.
[19] The petitioner also responded to the respondents’ argument that to grant the orders sought would amount to a breach of the doctrine of separation of powers. In their submission, courts have a duty to intervene where constitutional violations occur. He placed reliance Speaker of the Senate v Attorney General [2013] eKLR to buttress his submission that the Petition does not seek to perform executive functions and/or substitute legislative processes; but merely seeks enforcement of constitutional compliance. In his submission, judicial intervention is therefore proper and necessary.
[20] Lastly, the petitioner summarized the law on preliminary objections as settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He also relied on Oraro v Mbaja [2005] I KLR 141, to back up his argument that the issues raised by the respondents, such as whether the petition is premature; whether constitutional violations have crystallized and whether exhaustion doctrine applies to the circumstances hereof, are not pure points of law, but require examination of facts, evaluation of evidence and the exercise of judicial discretion.
[21] Accordingly, the petitioner urged the Court to dismiss the Preliminary Objection with costs.
[22] As was pointed out in Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd:
“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”
[23] Likewise, in Oraro vs. Mbaja (supra) the principle was restated thus by Hon. Ojwang, J. (as he then was):
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[24] With the foregoing in mind, I have given careful consideration to the Preliminary Objection raised by the respondents and the grounds relied on by them in seeking the striking out of the Petition. I have similarly taken into consideration the written submissions filed by the parties. The issues for determination, as well summarized by the parties, are:
[a] Whether the Court has jurisdiction to entertain the present Petition.
[b] Whether the Petition is vague and incompetent for want of precision.
[c] Whether the petition offends the doctrines of constitutional avoidance and exhaustion.
[d] Whether the Petition offends the doctrine of separation of
Powers.
[25] Clearly, the issue of jurisdiction is key to the resolution of the other points of objection raised by the respondents. Needless to say that it would be inconsequential for a Court of law to proceed to hear and determine a matter if it lacks the jurisdiction so to do. This was aptly expressed by the Court of Appeal in the Owners of Motor Vessel "Lilian s" vs. Caltex Oil (K) Ltd [1989] KLR 1, thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."
[26] And there is no gainsaying that the question of jurisdiction is one that must be taken in limine. In above case the Court (per Nyarangi, JA) added that:
"...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."
[27] In the work, Major Law Lexicon, Volume 4, jurisdiction is aptly defined thus:
"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Chapter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of the actions or the matters of which the particular court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics..."
[28] Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"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 by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for 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. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[29] In the premises, I have perused the Petition and note that at paragraph 9, the petitioner complained that the 1st respondent vide an Executive order dated 16th March 2026 initiated a formal process of identifying shortlisting and nominating persons for appointment to key county offices within the County of Homa Bay. The petitioner raised the issues of failure to comply with the two-thirds gender principle, violation of the rights of persons with disabilities, violation of the National Values under Article 10 of the Constitution and violation of public service principles.
[30] It t is manifest from the foregoing that what is impugned by the Petition is the recruitment process commenced by the 1st Respondent in respect of the vacant positions of Deputy Governor, County Executive Committee Member in charge of Trade, Industry, Tourism, Marketing and Co-operative Development as well as the County Executive Committee Member in charge of Governance, Administration, Communication and Devolution. Accordingly, the single issue that presents itself for determination in this Ruling is the question whether a grievance in connection with the recruitment process is a matter that can be ventilated before the High Court.
[31] Article 165(3) of the Constitution sets out the jurisdiction of the High Court in the following terms:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) 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;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[32] Article 165(5) of the Constitution is however explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[33] On the other hand, Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[34] Section 12 of the Employment and Labour Relations Act stipulates that:
"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..."
[35] It is plain from the foregoing that the Court with jurisdiction to handle matters to do with recruitment of employees is the Employment and Labour Relations Court. I find succour in Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, wherein a question arose as to whether the Employment and Labour Relations Court was properly seized of a dispute arising from a recruitment process; and it was held (by Hon. B. Ongaya, J. as he then was) that:
"As relates to jurisdiction by subject matter, Article 162(2)(a) of the Constitution and Section 12(1) of the Act are elaborate that jurisdiction attaches to this court with respect to disputes relating to employment and labour relations. In the instant case, the dispute is about a recruitment process undertaken by the respondent. The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of that subject matter."
[36] Similarly, in Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & Another [2015] eKLR, the Employment and Labour Relations Court (Hon. Mbaru, J.) held that:
"...The orders sought relate to the Claimant seeking to stop the recruitment of 53 county education to replace the current Directors of County Education. Thus, the issues in dispute and the orders sought relate to employment and labour relations, matters directly under the jurisdiction of this court. Matters of recruitment of employees, termination of employment through whatever means - constructive dismissal/termination as well - fall under the purview of this court's jurisdiction."
[37] I am in agreement with the position taken in the above cases. I note that the petitioner was of the view this Petition raises issues fit for constitutional interpretation for which only the High Court has jurisdiction. That argument is clearly untenable in the light of the provisions of Articles 162, 165(3)(a) and (5) of the Constitution or Section 12 of the Employment and Labour Relations Act. Indeed, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, it was held that the Employment and Labour Relations Court has the jurisdiction to interpret the Constitution where such issues arise in matters falling under Section 12 of the Employment and Labour Relations Act. The Court of Appeal expressed the following viewpoint in the matter:
"...we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects."
[38] In Okiya Omtatah v Joseph Kinyua & Another [2018] eKLR, a case handled by the Employment and Labour Relations Court (Hon. Abuodha, J.) in which the issue arose as to whether that court had the jurisdiction to entertain a dispute involving the interpretation of the Constitution, and it was held that:
"The court while would like to avoid the never ending debate on the scope of jurisdiction of this court over constitutional issues would like to state that it is erroneous to apply the test of the existence of employer-employee relationship as the main criteria for deciding whether a constitutional question arising in that context can be determined by the court. Third parties towards whom there may be no employer-employee relationship may jointly or indirectly take decisions that affect employer-employee relationship. This makes them amenable to the jurisdiction of the court. The preamble to the ELRC Act ...is wide enough and cannot by any manner of interpretation be understood to confine the jurisdiction of the court to only situations where there is in existence an employer-employee relationship. That would be too narrow interpretation."
[39] In the result, I would uphold the respondents' Preliminary Objection on jurisdiction and find that this is a matter that ought to have been filed before the Employment and Labour Relations Court; and therefore that this Court has no jurisdiction to entertain it. That being my view, I must down my tools as no useful purpose would be served by considering the other issues raised by the respondents, namely, whether the Petition is vague and incompetent for want of precision, whether the petition offends the doctrines of constitutional avoidance and exhaustion and whether the Petition offends the doctrine of separation of powers.
[40] It is now trite that a suit filed in a court without jurisdiction cannot be transferred to another court. The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
“[153] …the purposive reading and interpretation of Article 162 together with Article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under Article 162(2) supra, must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[41] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[42] In view of the above, the resp
[...truncated]
[a] The Petition is vexatious, frivolous, and an abuse of the process of the Court in that it was instituted without reasonable cause, motive, or legal basis.
[b] The Petition is vague and incompetent for want of precision in pleading the alleged constitutional violations, contrary to the principle in Anarita Karimi Njeru v Republic [1979] eKLR.
[c] This Court lacks jurisdiction to entertain the Petition and the Notice of Motion, the issues raised therein being premature, speculative and non-justiciable as no actual or crystallized constitutional violation has arisen from the impugned process.
[d] The Petition lacks jurisdictional competence, as the issues raised by it relate to employment and labour relations in so far as they concern the nomination, vetting, approval and appointment of public officers to the County Executive Committee; issues which fall within the exclusive jurisdiction of the Employment and Labour Relations Court pursuant to Article 162(2)(a) of the Constitution of Kenya.
[e] The Petition offends the doctrine of exhaustion, in that the Petitioner has failed to invoke and/or exhaust the constitutionally and statutorily prescribed procedures governing the nomination, vetting, approval and public participation processes as provided under the County Governments Act, 2012, the Public Appointments (County Assemblies Approval) Act, 2017, and the applicable Standing Orders of the County Assembly of Homa Bay.
[f] The Petition offends the doctrines of ripeness and constitutional avoidance, in that it invites the Court to prematurely determine issues arising from an ongoing constitutional and statutory process before the same has been concluded and a concrete and justiciable constitutional violation has crystallized.
[g] The Petition violates the doctrine of separation of powers by inviting this Court to interfere with and halt an ongoing constitutional and statutory process vested in the County Executive and the County Assembly.
[h] The Petition improperly seeks to constitutionalize an anticipatory grievance, including alleged non-compliance with the two-thirds gender principle and inclusion of persons with disabilities, which claims are premature and incapable of determination prior to the conclusion of the appointment process and full constitution of the County Executive Committee.
[i] The Petition fails to disclose a reasonable, specific and actionable constitutional cause of action, and is instead founded on generalized apprehensions and anticipatory claims, rendering it incompetent and unsustainable in law.
[2] Accordingly, the respondents prayed that the Petition be struck out in its entirety with costs for being premature, untenable in law, and for constituting a gross and manifest abuse of the due process of the Court.
[3] The brief background of the matter is that the petitioner filed the Petition dated 21st March 2026 seeking for declaratory and injunctive orders against respondents along with an interlocutory application seeking the halting of the appointment of the Deputy County Governor, the County Executive Committee Member for Trade, Industry, Tourism, Marketing and Cooperative Development; and County Executive Committee Member responsible for Governance, Administration, Communication and Devolution in the County Government of Homa Bay pending the hearing and determination of the Petition.
[4] In response thereto, the 1st and 5th respondents filed the Notice of Preliminary Objection dated 25th March 2026 which is the subject of this ruling. The Preliminary Objection was canvassed by way of written submissions pursuant to the directions given herein on the 9th April 2026. Hence, the respondents relied on their written submissions in which they proposed the following issues for determination:
[a] Whether the Preliminary Objection meets the threshold established in law.
[b] Whether the matter is sub judice.
[c] Whether the petitioner has exhausted all internal mechanisms as required by the law.
[d] Whether this has jurisdiction to hear and determine the suit.
[e] Whether the petitioner stands to suffer any irreparable damage.
[f] Who shall bear the cost?
[5] The respondent made reference to the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, and submitted that their Preliminary Objection adheres to the principle laid down in that case in so far as it raises issues of pure points of law, specifically the issue of lack of jurisdiction as the Court is barred by both constitution and statutes on the ground that the subject matter revolves around employment. They argued that Articles 162(2)(a) and 165 of the Constitution donate specific jurisdiction to each court established thereunder; and that a court cannot confer jurisdiction on its self.
[6] In the submission of the respondents, the issues raised by the petitioner in his application regarding the position of the Deputy Governor can only be competently addressed in an election court vide an election petition whereas issues raised relating to the County Executive Committee Members falls within the exclusive jurisdiction of the Employment and Labour Relations Court pursuant to Article 162(2)(a) of the Constitution of Kenya. They relied on Sections 4 and 12 of the Employment Act in support of their submissions.
[7] Further to the foregoing, the respondents submitted that, other than the issue of jurisdiction, the Petition raises other pertinent issues of law, namely:
[a] Whether the Petition meets the test for Constitutional Petition.
[b] Whether the Petition invokes the Principle of Constitutional Avoidance.
[c] Whether the petitioner exhausted the statutory remedies available before filing the instant Petition.
[c] Whether this Petition is sub judice
[8] According to the respondents, although the petitioner cited Articles 10, 21(3), 22, 23, 27, 54(2), 81(B), 179, 197(1), 232 and 260 of the Constitution in its title, little or no particulars were pleaded as to the manner of the alleged infringements; and therefore the Petition falls short of the very substantive test laid down in the case of Anarita Karimi Njeru v Republic [1979] 1 KLR 54 and reiterated in Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR. In their submission, the petitioner merely cited constitutional provisions without stating the manner of violation.
[9] On the principle of constitutional avoidance, the respondents submitted that not all claims that cite constitutional provisions necessarily amount to constitutional claims to qualify for filing as constitutional petitions. They urged the principle that where a dispute is one which can be determined under another area of law other than the constitution then it is best that the constitutional route be avoided. They relied on the decision of the Supreme Court in Communications Commission of Kenya and C O D & another v Nairobi City Water & Sewerage Co. Ltd [2015] eKLR to buttress their arguments.
[10] The respondents also submitted that the process of filling of a vacancy in the office of the constitutional office of the Deputy Governor is governed by Section 32D of the County Government Act No. 17 of 2012, which stipulates that the Governor is required to nominate a person for appointment as Deputy Governor within fourteen days (14) days. Thereafter the County Assembly is required under Section 32D(3) of the County Government Act to consider a motion for approval of the appointment and resolve whether to approve the nomination within fourteen (14) days and in default of such resolution within the said period , the nomination shall be deemed to have been approved upon lapse of the fourteen (14) days without the County Assembly making a decision.
[11] With reference to Section 7(10) of the Public Appointments (County Assemblies Approval) Act 2017, the respondents argued that prior to the approval hearing, the petitioner ought to have submitted a written statement on oath to the Clerk contesting the suitability of a nominees but failed to do so. They therefore urged the Court to find that there was a failure on the part of the petitioner to strictly comply with and exhaust the applicable law before approaching the Court for intervention.
[12] Lastly, the respondents submitted that the petitioner failed to disclose that the same matters in this instant suit are the subject of another case in another court, namely: Kisumu ELRC Petition No. E026 of 2026. Accordingly, they submitted that the instant suit is sub judice and an abuse of court process. They relied on Section 6 of the Civil Procedure Act and David Ndii & Others v Attorney General & Others [2021] eKLR, as to the object of sub judice rule, namely to prevent multiplicity of suits and conflicting decisions.
[13] On the basis of the foregoing submissions, the respondents urged for the dismissal of the Petition alongside the Notice of Motion dated 21st March 2026 with costs.
[14] On his part, the petitioner proposed the following issues for determination vide his written submissions:
[a] Whether the Petition is vague and incompetent for want of precision.
[b] Whether the Court has jurisdiction to entertain the present Petition.
[c] Whether the petition offends the doctrine of exhaustion.
[d] Whether the Petition offends the doctrine of separation of
Powers.
[e] Whether the Preliminary Objection is merited.
[15] On whether the Petition has been pleaded with the requisite specificity, the petitioner argued that the Court of Appeal in Mumo Maternu v Trusted Society of Human Rights Alliance [2013] eKLR clarified that, precision is not a formalistic or mechanical requirement; and that substance must prevail over form. He submitted that the Petition is compliant in so far as it clearly identifies the impugned Executive Order dated 16th March 2026 ; particularizes the nomination process and specifies the violated constitutional provisions, including but not limited to Articles 10, 27, 54, 81(b), 197(1), and 232 of the Constitution
[16] In the petitioner’s submission, the Petition herein is neither vague nor incompetent as it precisely sets out the constitutional violations and it therefore fully satisfies the threshold for constitutional petitions. In his view, it is sufficient that the Petition raises issues to do with violation of the two-thirds gender principle , inclusion of people with disabilities and violation of Article 10 of the Constitution.
[17] In response to the respondents’ contention that the matter falls under the jurisdiction of the Employment and Labour Relations Court, the petitioner relied on Trusted Society of Human Rights Alliance v Nakuru Water [2013] eKLR and submitted that the Petition challenges the constitutionality of appointments by the respondents and therefore falls within the jurisdiction of this Court. He contended, on the authority of USIU v Attorney General [2012] eKLR that the jurisdiction of the ELRC applies only where the dispute is primarily employment-based. In the petitioner’s view, the present Petition is purely constitutional, and therefore this Court is properly seized of jurisdiction.
[18] On the doctrine of exhaustion, the petitioner’s submission was that it is not absolute. He relied on Geoffrey Muthinja v Samuel Muguna Henry [2015] eKLR, and set out the exceptional circumstances that the Court ought to take into consideration, such as whether the matter raises constitutional issues; and whether the alternative remedies provided for are adequate. Reliance was also placed in Republic v IEBC ex parte NASA [2017] eKLR to support the argument that the County Assembly cannot determine issues to do with constitutionality or enforce fundamental rights; and therefore the doctrine of exhaustion is inapplicable.
[19] The petitioner also responded to the respondents’ argument that to grant the orders sought would amount to a breach of the doctrine of separation of powers. In their submission, courts have a duty to intervene where constitutional violations occur. He placed reliance Speaker of the Senate v Attorney General [2013] eKLR to buttress his submission that the Petition does not seek to perform executive functions and/or substitute legislative processes; but merely seeks enforcement of constitutional compliance. In his submission, judicial intervention is therefore proper and necessary.
[20] Lastly, the petitioner summarized the law on preliminary objections as settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He also relied on Oraro v Mbaja [2005] I KLR 141, to back up his argument that the issues raised by the respondents, such as whether the petition is premature; whether constitutional violations have crystallized and whether exhaustion doctrine applies to the circumstances hereof, are not pure points of law, but require examination of facts, evaluation of evidence and the exercise of judicial discretion.
[21] Accordingly, the petitioner urged the Court to dismiss the Preliminary Objection with costs.
[22] As was pointed out in Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd:
“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”
[23] Likewise, in Oraro vs. Mbaja (supra) the principle was restated thus by Hon. Ojwang, J. (as he then was):
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[24] With the foregoing in mind, I have given careful consideration to the Preliminary Objection raised by the respondents and the grounds relied on by them in seeking the striking out of the Petition. I have similarly taken into consideration the written submissions filed by the parties. The issues for determination, as well summarized by the parties, are:
[a] Whether the Court has jurisdiction to entertain the present Petition.
[b] Whether the Petition is vague and incompetent for want of precision.
[c] Whether the petition offends the doctrines of constitutional avoidance and exhaustion.
[d] Whether the Petition offends the doctrine of separation of
Powers.
[25] Clearly, the issue of jurisdiction is key to the resolution of the other points of objection raised by the respondents. Needless to say that it would be inconsequential for a Court of law to proceed to hear and determine a matter if it lacks the jurisdiction so to do. This was aptly expressed by the Court of Appeal in the Owners of Motor Vessel "Lilian s" vs. Caltex Oil (K) Ltd [1989] KLR 1, thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."
[26] And there is no gainsaying that the question of jurisdiction is one that must be taken in limine. In above case the Court (per Nyarangi, JA) added that:
"...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."
[27] In the work, Major Law Lexicon, Volume 4, jurisdiction is aptly defined thus:
"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Chapter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of the actions or the matters of which the particular court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics..."
[28] Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"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 by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for 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. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[29] In the premises, I have perused the Petition and note that at paragraph 9, the petitioner complained that the 1st respondent vide an Executive order dated 16th March 2026 initiated a formal process of identifying shortlisting and nominating persons for appointment to key county offices within the County of Homa Bay. The petitioner raised the issues of failure to comply with the two-thirds gender principle, violation of the rights of persons with disabilities, violation of the National Values under Article 10 of the Constitution and violation of public service principles.
[30] It t is manifest from the foregoing that what is impugned by the Petition is the recruitment process commenced by the 1st Respondent in respect of the vacant positions of Deputy Governor, County Executive Committee Member in charge of Trade, Industry, Tourism, Marketing and Co-operative Development as well as the County Executive Committee Member in charge of Governance, Administration, Communication and Devolution. Accordingly, the single issue that presents itself for determination in this Ruling is the question whether a grievance in connection with the recruitment process is a matter that can be ventilated before the High Court.
[31] Article 165(3) of the Constitution sets out the jurisdiction of the High Court in the following terms:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) 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;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[32] Article 165(5) of the Constitution is however explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[33] On the other hand, Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[34] Section 12 of the Employment and Labour Relations Act stipulates that:
"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..."
[35] It is plain from the foregoing that the Court with jurisdiction to handle matters to do with recruitment of employees is the Employment and Labour Relations Court. I find succour in Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, wherein a question arose as to whether the Employment and Labour Relations Court was properly seized of a dispute arising from a recruitment process; and it was held (by Hon. B. Ongaya, J. as he then was) that:
"As relates to jurisdiction by subject matter, Article 162(2)(a) of the Constitution and Section 12(1) of the Act are elaborate that jurisdiction attaches to this court with respect to disputes relating to employment and labour relations. In the instant case, the dispute is about a recruitment process undertaken by the respondent. The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of that subject matter."
[36] Similarly, in Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & Another [2015] eKLR, the Employment and Labour Relations Court (Hon. Mbaru, J.) held that:
"...The orders sought relate to the Claimant seeking to stop the recruitment of 53 county education to replace the current Directors of County Education. Thus, the issues in dispute and the orders sought relate to employment and labour relations, matters directly under the jurisdiction of this court. Matters of recruitment of employees, termination of employment through whatever means - constructive dismissal/termination as well - fall under the purview of this court's jurisdiction."
[37] I am in agreement with the position taken in the above cases. I note that the petitioner was of the view this Petition raises issues fit for constitutional interpretation for which only the High Court has jurisdiction. That argument is clearly untenable in the light of the provisions of Articles 162, 165(3)(a) and (5) of the Constitution or Section 12 of the Employment and Labour Relations Act. Indeed, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, it was held that the Employment and Labour Relations Court has the jurisdiction to interpret the Constitution where such issues arise in matters falling under Section 12 of the Employment and Labour Relations Act. The Court of Appeal expressed the following viewpoint in the matter:
"...we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects."
[38] In Okiya Omtatah v Joseph Kinyua & Another [2018] eKLR, a case handled by the Employment and Labour Relations Court (Hon. Abuodha, J.) in which the issue arose as to whether that court had the jurisdiction to entertain a dispute involving the interpretation of the Constitution, and it was held that:
"The court while would like to avoid the never ending debate on the scope of jurisdiction of this court over constitutional issues would like to state that it is erroneous to apply the test of the existence of employer-employee relationship as the main criteria for deciding whether a constitutional question arising in that context can be determined by the court. Third parties towards whom there may be no employer-employee relationship may jointly or indirectly take decisions that affect employer-employee relationship. This makes them amenable to the jurisdiction of the court. The preamble to the ELRC Act ...is wide enough and cannot by any manner of interpretation be understood to confine the jurisdiction of the court to only situations where there is in existence an employer-employee relationship. That would be too narrow interpretation."
[39] In the result, I would uphold the respondents' Preliminary Objection on jurisdiction and find that this is a matter that ought to have been filed before the Employment and Labour Relations Court; and therefore that this Court has no jurisdiction to entertain it. That being my view, I must down my tools as no useful purpose would be served by considering the other issues raised by the respondents, namely, whether the Petition is vague and incompetent for want of precision, whether the petition offends the doctrines of constitutional avoidance and exhaustion and whether the Petition offends the doctrine of separation of powers.
[40] It is now trite that a suit filed in a court without jurisdiction cannot be transferred to another court. The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
“[153] …the purposive reading and interpretation of Article 162 together with Article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under Article 162(2) supra, must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[41] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[42] In view of the above, the resp
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