Introduction
1. This ruling addresses whether this Court has jurisdiction to hear the petition and the Notice of Motion dated 15th May 2026, having regard to Articles 162(2)(a) and 165(5) of the Constitution.
2. The petition challenges the nomination and intended vetting of persons nominated for appointment as Chairperson, Members and Secretary/Chief Executive Officer of the Kericho County Public Service Board. The Petitioner pleads that, by a notice dated 13th May 2026, the County Assembly of Kericho invited six nominees for vetting on 18th May 2026 for appointment to the Kericho County Public Service Board. The petition alleges that the list of nominees offends the two-thirds gender principle, excludes persons with disabilities and excludes youth representation.
3. The Notice of Motion seeks, principally, prohibitory orders restraining the 2nd Respondent from conducting the vetting process slated for 18th May 2026 pending the hearing and determination of the application and the petition. The grounds of the application repeat the complaint that the nomination and intended vetting process violates Articles 10, 27, 54, 55 and 232 of the Constitution and the County Governments Act.
4. This matter came up for hearing of the interlocutory application this morning. The respondents were absent despite service . The Court, on its own motion, raised the issue of jurisdiction and invited counsel for the Petitioner/Applicant to address the Court on the same. Counsel submitted that the issue herein is not one of employment but of nomination.
5. Jurisdiction is a preliminary issue. The Court must first satisfy itself that it has jurisdiction to deal with the matter; otherwise, it must down its tools.
6. The single issue for determination is whether this Court, being the High Court, has jurisdiction to hear and determine a dispute challenging the nomination, vetting and intended appointment of persons to the Kericho County Public Service Board, or whether the dispute falls within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution.
Applicable Constitutional and Legal Framework
7. Article 165(3) of the Constitution vests the High Court with wide jurisdiction, including the power to determine questions relating to the interpretation of the Constitution and whether a right or fundamental freedom has been denied, violated, infringed or threatened.
8. That jurisdiction is, however, expressly limited by Article 165(5) of the Constitution. Article 165(5) provides that the High Court shall not have jurisdiction in respect of matters—
a. reserved for the exclusive jurisdiction of the Supreme Court under the Constitution; or
b. falling within the jurisdiction of the courts contemplated in Article 162(2).
9. The relevant provision for purposes of this ruling is Article 165(5)(b), not Article 165(5)(a). Article 162(2)(a) requires Parliament to establish a court with the status of the High Court to hear and determine disputes relating to employment and labour relations.
10. The Employment and Labour Relations Court is a specialised court established under Article 162(2)(a) and operationalised under the Employment and Labour Relations Court Act. It has original and appellate jurisdiction to hear and determine disputes relating to employment and labour relations.
11. Section 12(1) of the Employment and Labour Relations Court Act vests in the Employment and Labour Relations Court exclusive original and appellate jurisdiction to hear and determine disputes referred to it in accordance with Article 162(2) of the Constitution and the Act.
12. The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR emphasised that courts established under Article 162(2) are courts of equal status with the High Court but do not exercise the same jurisdiction as the High Court. Their equality of status does not collapse the constitutional boundaries between them. Jurisdiction remains subject-matter specific.
13. In United States International University (USIU) v Attorney General & Others [2012] eKLR, the Court held that the Industrial Court, now the Employment and Labour Relations Court, is competent to enforce constitutional rights where the dispute falls within the employment and labour relations field.
14. That principle was later affirmed in Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, where the Court of Appeal stated that matters substantially falling within employment and labour relations ought to be handled by the specialised court.
15. More recently, in Kenya Tea Growers Association & 2 Others v National Social Security Fund Board of Trustees & 13 Others [2024] KESC 3 (KLR), the Supreme Court affirmed that the Employment and Labour Relations Court may determine constitutional questions where those questions arise within, or are sufficiently connected to, employment and labour relations. The Supreme Court held that the Employment and Labour Relations Court had jurisdiction to determine constitutional issues where the dispute was anchored in employment and labour relations.
Analysis
16. The Court must look beyond the form of the pleadings and identify the true nature and dominant substance of the dispute. A party cannot confer jurisdiction on the High Court merely by citing constitutional provisions if, in substance, the dispute is one reserved to a specialised court.
17. The petition before this Court does not concern a general abstract question of constitutional interpretation detached from an employment or public service appointment process. It concerns the nomination, vetting and intended appointment of persons to the Kericho County Public Service Board. The impugned process is a recruitment and public appointment process within the county public service framework.
18. The Petitioner’s grievance is that the persons nominated for appointment to the County Public Service Board do not meet constitutional and statutory requirements relating to gender balance, representation of persons with disabilities, youth representation, inclusiveness, equality of opportunity and public service values. Those are important constitutional questions. However, they arise directly from a process of appointment to public office within the county public service.
19. The reliefs sought confirm the same position. The Petitioner seeks orders stopping the vetting process, declarations that the nominations violate Articles 10, 27, 54, 55 and 232 of the Constitution, certiorari to quash the decision to vet the nominees, and mandamus directing compliance with the County Governments Act and the Constitution in the nomination and appointment process.
20. In my view, this dispute is not about abstract constitutional interpretation. Its core issue is the legality of a public recruitment, vetting and appointment process to a County Public Service Board. That dispute falls squarely within employment and labour relations, specifically public service recruitment and appointment.
21. The Petitioner’s status as a community-based organisation acting in the public interest does not change the nature of the dispute. Jurisdiction is determined by subject matter, not by the litigant’s identity. A public interest litigant must approach the appropriate court and cannot invoke a court whose jurisdiction is expressly excluded by the Constitution.
22. The fact that the petition invokes Articles 22, 23, 27, 47, 54, 55, 232 and 258 of the Constitution is not decisive. The Employment and Labour Relations Court, as a court of equal status with the High Court, can determine constitutional questions and grant remedies where the dispute concerns employment and labour relations.
23. The Supreme Court’s decision in Kenya Tea Growers Association & 2 Others v National Social Security Fund Board of Trustees & 13 Others [2024] KESC 3 (KLR) confirmed that constitutional questions do not automatically fall within the High Court’s jurisdiction if their subject matter lies within a specialised Article 162(2) court.
24. Article 165(5)(b) is mandatory. Once the Court determines that a matter falls within the jurisdiction of a court established under Article 162(2), the High Court is constitutionally barred from assuming jurisdiction. The Court cannot consider the merits of the application for conservatory or prohibitory orders, as doing so would usurp the powers of the Employment and Labour Relations Court.
25. I therefore find that this petition and the accompanying application fall within the jurisdiction of the Employment and Labour Relations Court established under Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act.
26. It is well established that jurisdiction is fundamental. Without jurisdiction, the Court must cease proceedings. That principle was authoritatively stated in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction is everything and that, without it, a court has no power to make one more step.
Disposition
27. For the reasons stated above, I make the following orders:
a. This Court finds that it lacks jurisdiction to hear and determine this petition and the Notice of Motion dated 15th May 2026.
b. The dispute falls within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution.
c. The petition is hereby struck out for want of jurisdiction.
d. There shall be no order as to costs.
28. It is so ordered.
T. A. ODERA
JUDGE
25.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR MUGUMIA FOR THE PETITIONER /APPLICANT & CA BUSIENEI .
1. This ruling addresses whether this Court has jurisdiction to hear the petition and the Notice of Motion dated 15th May 2026, having regard to Articles 162(2)(a) and 165(5) of the Constitution.
2. The petition challenges the nomination and intended vetting of persons nominated for appointment as Chairperson, Members and Secretary/Chief Executive Officer of the Kericho County Public Service Board. The Petitioner pleads that, by a notice dated 13th May 2026, the County Assembly of Kericho invited six nominees for vetting on 18th May 2026 for appointment to the Kericho County Public Service Board. The petition alleges that the list of nominees offends the two-thirds gender principle, excludes persons with disabilities and excludes youth representation.
3. The Notice of Motion seeks, principally, prohibitory orders restraining the 2nd Respondent from conducting the vetting process slated for 18th May 2026 pending the hearing and determination of the application and the petition. The grounds of the application repeat the complaint that the nomination and intended vetting process violates Articles 10, 27, 54, 55 and 232 of the Constitution and the County Governments Act.
4. This matter came up for hearing of the interlocutory application this morning. The respondents were absent despite service . The Court, on its own motion, raised the issue of jurisdiction and invited counsel for the Petitioner/Applicant to address the Court on the same. Counsel submitted that the issue herein is not one of employment but of nomination.
5. Jurisdiction is a preliminary issue. The Court must first satisfy itself that it has jurisdiction to deal with the matter; otherwise, it must down its tools.
6. The single issue for determination is whether this Court, being the High Court, has jurisdiction to hear and determine a dispute challenging the nomination, vetting and intended appointment of persons to the Kericho County Public Service Board, or whether the dispute falls within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution.
Applicable Constitutional and Legal Framework
7. Article 165(3) of the Constitution vests the High Court with wide jurisdiction, including the power to determine questions relating to the interpretation of the Constitution and whether a right or fundamental freedom has been denied, violated, infringed or threatened.
8. That jurisdiction is, however, expressly limited by Article 165(5) of the Constitution. Article 165(5) provides that the High Court shall not have jurisdiction in respect of matters—
a. reserved for the exclusive jurisdiction of the Supreme Court under the Constitution; or
b. falling within the jurisdiction of the courts contemplated in Article 162(2).
9. The relevant provision for purposes of this ruling is Article 165(5)(b), not Article 165(5)(a). Article 162(2)(a) requires Parliament to establish a court with the status of the High Court to hear and determine disputes relating to employment and labour relations.
10. The Employment and Labour Relations Court is a specialised court established under Article 162(2)(a) and operationalised under the Employment and Labour Relations Court Act. It has original and appellate jurisdiction to hear and determine disputes relating to employment and labour relations.
11. Section 12(1) of the Employment and Labour Relations Court Act vests in the Employment and Labour Relations Court exclusive original and appellate jurisdiction to hear and determine disputes referred to it in accordance with Article 162(2) of the Constitution and the Act.
12. The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR emphasised that courts established under Article 162(2) are courts of equal status with the High Court but do not exercise the same jurisdiction as the High Court. Their equality of status does not collapse the constitutional boundaries between them. Jurisdiction remains subject-matter specific.
13. In United States International University (USIU) v Attorney General & Others [2012] eKLR, the Court held that the Industrial Court, now the Employment and Labour Relations Court, is competent to enforce constitutional rights where the dispute falls within the employment and labour relations field.
14. That principle was later affirmed in Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, where the Court of Appeal stated that matters substantially falling within employment and labour relations ought to be handled by the specialised court.
15. More recently, in Kenya Tea Growers Association & 2 Others v National Social Security Fund Board of Trustees & 13 Others [2024] KESC 3 (KLR), the Supreme Court affirmed that the Employment and Labour Relations Court may determine constitutional questions where those questions arise within, or are sufficiently connected to, employment and labour relations. The Supreme Court held that the Employment and Labour Relations Court had jurisdiction to determine constitutional issues where the dispute was anchored in employment and labour relations.
Analysis
16. The Court must look beyond the form of the pleadings and identify the true nature and dominant substance of the dispute. A party cannot confer jurisdiction on the High Court merely by citing constitutional provisions if, in substance, the dispute is one reserved to a specialised court.
17. The petition before this Court does not concern a general abstract question of constitutional interpretation detached from an employment or public service appointment process. It concerns the nomination, vetting and intended appointment of persons to the Kericho County Public Service Board. The impugned process is a recruitment and public appointment process within the county public service framework.
18. The Petitioner’s grievance is that the persons nominated for appointment to the County Public Service Board do not meet constitutional and statutory requirements relating to gender balance, representation of persons with disabilities, youth representation, inclusiveness, equality of opportunity and public service values. Those are important constitutional questions. However, they arise directly from a process of appointment to public office within the county public service.
19. The reliefs sought confirm the same position. The Petitioner seeks orders stopping the vetting process, declarations that the nominations violate Articles 10, 27, 54, 55 and 232 of the Constitution, certiorari to quash the decision to vet the nominees, and mandamus directing compliance with the County Governments Act and the Constitution in the nomination and appointment process.
20. In my view, this dispute is not about abstract constitutional interpretation. Its core issue is the legality of a public recruitment, vetting and appointment process to a County Public Service Board. That dispute falls squarely within employment and labour relations, specifically public service recruitment and appointment.
21. The Petitioner’s status as a community-based organisation acting in the public interest does not change the nature of the dispute. Jurisdiction is determined by subject matter, not by the litigant’s identity. A public interest litigant must approach the appropriate court and cannot invoke a court whose jurisdiction is expressly excluded by the Constitution.
22. The fact that the petition invokes Articles 22, 23, 27, 47, 54, 55, 232 and 258 of the Constitution is not decisive. The Employment and Labour Relations Court, as a court of equal status with the High Court, can determine constitutional questions and grant remedies where the dispute concerns employment and labour relations.
23. The Supreme Court’s decision in Kenya Tea Growers Association & 2 Others v National Social Security Fund Board of Trustees & 13 Others [2024] KESC 3 (KLR) confirmed that constitutional questions do not automatically fall within the High Court’s jurisdiction if their subject matter lies within a specialised Article 162(2) court.
24. Article 165(5)(b) is mandatory. Once the Court determines that a matter falls within the jurisdiction of a court established under Article 162(2), the High Court is constitutionally barred from assuming jurisdiction. The Court cannot consider the merits of the application for conservatory or prohibitory orders, as doing so would usurp the powers of the Employment and Labour Relations Court.
25. I therefore find that this petition and the accompanying application fall within the jurisdiction of the Employment and Labour Relations Court established under Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act.
26. It is well established that jurisdiction is fundamental. Without jurisdiction, the Court must cease proceedings. That principle was authoritatively stated in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction is everything and that, without it, a court has no power to make one more step.
Disposition
27. For the reasons stated above, I make the following orders:
a. This Court finds that it lacks jurisdiction to hear and determine this petition and the Notice of Motion dated 15th May 2026.
b. The dispute falls within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution.
c. The petition is hereby struck out for want of jurisdiction.
d. There shall be no order as to costs.
28. It is so ordered.
T. A. ODERA
JUDGE
25.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR MUGUMIA FOR THE PETITIONER /APPLICANT & CA BUSIENEI .