Awino v Mwangi & 5 others (Employment and Labour Relations Petition E066 of 2026) [2026] KEELRC 1478 (KLR) (22 May 2026) (Ruling)

Awino v Mwangi & 5 others (Employment and Labour Relations Petition E066 of 2026) [2026] KEELRC 1478 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1478 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E066 of 2026 JW Keli, J May 22, 2026 Between Francis Awino Petitioner and Stephen Mwangi 1st Respondent Patrick Analo 2nd Respondent Fredrick Ochanda 3rd Respondent Simon Omondi 4th Respondent Tom Achar 5th Respondent and The Commission on Administrative Justice Interested Party Ruling 1.The Petitioner/Applicant vide Notice of Motion application dated 19th February 2026 brought under the provisions of Articles 2, 3, 10,23, 47, 73,75, 159, 162 (2) (a), 232, and 258 of the Constitution sought the following orders:-a.Spentb.Spent.c.Pending the hearing and determination of the Petition, the 2nd, 3rd, 4th and 5th Respondents be compelled to immediately step aside from their respective offices.d.Pending the hearing and determination of the Petition, the Respondents be barred from accessing their offices, official records, approval systems, or regulatory platforms relating to planning and development control.e.Pending the hearing and determination of the Petition, the Nairobi City County Public Service Board do designate acting officers to perform the functions of the said offices.f.This Honourable Court do suspend the operational authority of all development approvals issued under the direct authority of the Respondents after the date of the Commission on Administrative Justice findings, subject to review by competent authorities.g.This Honourable Court do order preservation of all records, files, electronic approvals, system logs, correspondence, inspection reports and planning registers relating to development approvals processed by the Respondents.h.The County Secretary, Nairobi City County Government, do file in Court within fourteen (14) days a complete inventory of all development approvals issued under the Respondents' tenure.i.The Ethics and Anti-Corruption Commission be notified of these proceedings for purposes of preservation of evidence.j.The costs of this Application be in the cause. 2.The Application was supported by the affidavit sworn by the Petitioner on 19th February 2026. 3.Grounds of the applicationa.The Petition raises weighty constitutional questions regarding the integrity, accountability, and suitability of the Respondents to continue holding public office within the meaning of Articles 10, 73 and 232 of the Constitution.b.The Respondents are public officers exercising statutory and regulatory authority over planning approvals, development control, and enforcement decisions affecting the rights, safety and property of residents of Nairobi City County.c.The findings of the Commission on Administrative Justice established that the Respondents approved, ratified, processed and facilitated unlawful development approvals in violation of statutory planning procedures and regulatory safeguards. The said findings further established failure by the Respondents to enforce stop orders, enforcement notices and revocation directives, thereby permitting unlawful construction to proceed.d.The conduct complained of demonstrates a prima facie case of abuse of office, dereliction of duty, administrative injustice and breach of public trust.e.The continued occupation of office by the Respondents creates a real and immediate risk that they may continue to issue further approvals, make regulatory decisions and exercise statutory authority in a manner inconsistent with the Constitution and the law, as they remain in control of official systems, records, approval platforms and inspection reports and regulatory files relevant to this Petition.f.Unless restrained, the Respondents may sanitize, validate, or regularize unlawful developments during the pendency of the Petition, thereby defeating the substratum of the proceedings.g.The Petition raises issues affecting public safety including structural compliance building standards, zoning, ventilation, and lawful urban planning, matters which directly implicate the lives and welfare of the publich.The balance of convenience tilts overwhelmingly in favour of preserving constitutional order rather than permitting continued exercise of contested authority.i.The public interest requires immediate intervention by this Honourable Court to protect the integrity of public administration and prevent continued unlawful exercise of public power.j.Conservatory orders in constitutional litigation are intended to preserve the subject matter of the dispute and safeguard the authority of the Court pending determination of the Petition.k.If the Respondents continue exercising office, the Court may ultimately find the Petition meritorious after irreversible administrative decisions have already been made, causing the Petition to be rendered nugatory.l.The stepping aside of public officers pending investigations and judicial determination is a recognized constitutional accountability mechanism designed to protect public confidence in governance.m.The orders sought do not determine the merits of the Petition but merely preserve the constitutional and legal position pending hearing.n.The prejudice to the Respondents is minimal and temporary whereas the prejudice to the public if the orders are not granted is substantial, continuous and irreparable.o.The Applicant has established a prima facie case with a likelihood of success and has demonstrated that the public interest, constitutional values and the rule of law require grant of conservatory orders. Response to the application 4.The application was opposed by the Respondents through a Notice of Preliminary Objection dated 2nd March 2026 and sought to have the Application and the Petition both dated 19th February 2026 struck out on the following grounds: -a.That this Honourable Court lacks the requisite jurisdiction to entertain and determine the Application and the Petition both dated 19th February 2026 as the matters raised therein fall outside the constitutional and statutory mandate of this Court as provided under Articles 162(2)(a) and 162 (3) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court Act.b.That the Petition and the accompanying Application is incompetent and discloses no reasonable cause of action because it is founded entirely upon the Report and recommendations and/or findings of the Commission on Administrative Justice (the Interested Party), which Report and/or recommendations and/or findings have been stayed by the Environment and Land Court in ELCLCJR NO. E006 OF 2026 – Patrick Analo Akivaga & 5 Others Vs Commission On Administrative Justice, Coldstone Investment Limited And Another, and a stayed decision is in law of no legal effect and cannot ground any proceedings or relief.c.That the Petitioner has failed to invoke and exhaust the clear statutory dispute resolution and disciplinary mechanisms provided under the County Governments Act prior to approaching this Honourable Court, contrary to the doctrine of exhaustion. Decision 5.The Notice of Preliminary Objection was canvassed by way of written submission. 6.The issue for determination under the Notice of preliminary objection by the respondents is whether the court has jurisdiction to determine the petition. 7.The jurisdiction of the court is as stated in Article 162 of the Constitution-“ 162.(1)The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2). (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). (4) The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article.” 8.The jurisdiction of the Court is further legislated in section 12 of the Employment and Labour Relations Act, to wit: -‘12. Jurisdiction of the Court(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employers' organisation and a trade unions organisation;(d)disputes between trade unions;(e)disputes between employer organizations;(f)disputes between an employers' organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer's organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.(2)An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.(3)In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders(i)interim preservation orders including injunctions in cases of urgency;(ii)a prohibitory order;(iii)an order for specific performance;(iv)a declaratory order;(v)an award of compensation in any circumstances contemplated under this Act or any written law;(vi)an award of damages in any circumstances contemplated under this Act or any written law;(vii)an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or(viii)any other appropriate relief as the Court may deem fit to grant.(4)In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.(5)The Court shall have jurisdiction to hear and determine appeals arising from -(a)decisions of the Registrar of Trade Unions; and(b)decisions of any other local tribunal or commission as may be prescribed under any written law.’ 9.The petition challenges the conduct of the Respondents while in public office. The petition questions the manner in which the respondents, who are public officers in the Nairobi City County government , have performed their statutory mandate. There were several grounds raised in the Notice. 10.On the question of exhaustion of the jurisdiction under section 77 of the County Government Act, I find that this is a constitutional petition, the petitioner is not restricted to exhaustion, as the Public Service Commission is restricted to employees and employers and also has no jurisdiction to determine constitutional issues. 11.An issue was raised on the decision at the Environment and Land Court, and I find it is not a proper issue for a preliminary objection as the facts are not settled. In Mukisa Biscuits Manufacturing Co. Ltd -Vs- West End Distributors Ltd. [1969] E.A. Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that:- ",…A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion’ 12.The court is then left with issue of its own jurisdiction. The instant cause of action falls within the realm of public administration, ethics, and the integrity of public officers, and is not within the domain of employment disputes. Neither the employee nor the employer has complained about work issues at the shop floor, welfare, terms of service, or benefits or deductions related to employment. The petition does not come within an employer-employee dispute or employment grievances contemplated in section 12 of the Employment and Labour Relations Court Act and the Employment Act. The petition invites the court to assume a supervisory role over the employee/public officer, which is a prerogative of the employer or legislative authorities. 13.There are mechanisms outside the court for addressing the integrity of public officers, such as the Ethics and Anti-Corruption Commission. However, the lack of exhaustion does not prevent the filing of a constitutional petition like this one. The Constitution of Kenya (2010) established three separate superior courts with distinct original jurisdictions. This court was limited to employment and labour relations. Article 162(2) states—‘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.’ The High Court was granted broad jurisdiction to interpret and apply the constitution, excluding the jurisdiction of this court and the Environment and Land Court under article 165, which states—‘3) Subject to clause(5),the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear appeals from decisions of tribunals appointed under this Constitution to consider the removal of a person from office, other than tribunals appointed under Article 144;(d)jurisdiction to hear questions concerning the interpretation of this Constitution, including the determination of—(i)whether a law is inconsistent with or contrary to this Constitution;(ii)whether anything done under the authority of this Constitution or any law is inconsistent with or contrary to this Constitution;(iii)matters relating to the constitutional powers of State organs concerning county governments and the constitutional relationship between different levels of government; and(iv)questions about conflicts of laws under Article 191; and(e)any other jurisdiction, whether original or appellate, conferred on it by legislation,’’ (emphasis added). 14.I find that the petitioner is not an employee and has no employment relations of any type with the parties; this court lacks jurisdiction to entertain the issues raised in the petition. The jurisdiction lies with the High Court to determine the question of whether the alleged conduct of the respondents who are employees holding a public office is inconsistent with the provision of the Constitution in exercise of its constitutional mandate under Article (165(3)(d)ii-‘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;’’ The court recognized the locus of the petitioner under article 258 of the Constitution to wit-‘258. Enforcement of this Constitution(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.’ The court finds that, while the petitioner is thus exercising his undoubted constitutional duty, the cause of action in the petition does not fall within this court's specialist jurisdiction, as explained above. 15.In the upshot, I do hold that the instant dispute is outside the jurisdiction of this court. The Notice of Preliminary Objection dated 2nd March 2026 by the respondents is upheld on ground of lack of jurisdiction. The court holds it lacks jurisdiction. The petition and application are struck out for want of jurisdiction. 16.The petition is in the public interest, hence no award of costs. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22ND MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence OfCourt Assistant: OtienoPetitioner : - in personRespondents:-Ms Munguti h/b Bake1st interested party- Anyiera2nd 3rd Interested party- Wangui h/b Njoroge