https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2407

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E176 OF 2026** **FRANCIS AWINO PETITIONER** *VERSUS* **PUBLIC SERVICE COMMISSION 1ST RESPONDENT** **THE BOARD OF DIRECTORS** **KENYA RURAL ROADS AUTHORITY 2ND RESPONDENT** **AND** **ENG. JACKSON MAGONDUY 1ST INTERESTED PARTY** **PUBLIC PROCUREMENT** **ADMINISTRATION REVIEW BOARD 2ND INTERESTED PARTY** **ETHICS AND ANTI-CORRUPTION COMMISSION 3RD INTERESTED PARTY** **RULING** The ruling herein relates to the Notice of Preliminary Objections filed by the 1st interested party dated 16 June 2026. The objections are: 1. *The petition contravenes article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act on the jurisdiction of the court, the matters herein being substantially of public procurement.* 2. *The petition is fatally defective in so far as it seeks adverse substantive orders against the interested party.* 3. *The petition herein is premature and offends the provisions of section 62, 63, and 64 of the Public Officer Ethics Act and sections 4 and 42 of the Leadership and Integrity Act on investigations, prosecution and removal from office of public officers on grounds of integrity.* 4. *In the circumstances, the petition is frivolous, a legal nullity, fatally defective and an abuse of the court process and should be struck out.* On the objections, the 1st interested party, in addressing whether the court has jurisdiction to hear and determine this matter, submitted that the Petitioner's suit relates to procurement matters. The jurisdiction of the court is derived from the provisions of Article 162 (2) (a) of the Constitution and the dictates of Section 12 of the Employment and Labour Relations Court Act. Article 162 (2) (a) of the Constitution allows the court to hear employment and labour relations disputes. The issues raised in this Petition on public procurement matters do not fall within the mandate of this court for hearing and determination. Section 12 of the Employment and Labour Relations Court Act (the Act) provides for the disputes which this court has jurisdiction to hear and determine. Section 12 of the Act provides that procurement disputes are not among the disputes that the Act mandates this court to hear and determine. In **Kenya Tea Growers Association & 2 Others versus The National Social Security Fund Board of Trustees & 13 Others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR) (21 February 2024) (Judgment);** the Supreme Court held that the ELRC cannot sit as the High Court under Article 165 of the Constitution and determine the constitutional validity of a statute where the dispute in question has nothing or little to do with employment and labour relations within the context of the Act. The dispute in this Petition has nothing to do with employment and labour relations. It does not fall within the disputes provided under section 12 of the Act, as it is a public procurement dispute and thus cannot be heard and determined by this court. The court lacks jurisdiction to hear and determine the dispute raised in this Petition, which is a public procurement dispute, and we therefore submit that it is dismissed or struck out. The 1st Petitioner submitted that the Petition is defective as it seeks adverse and substantive orders against an Interested Party. In Samuel **Kamau Macharia & another v the DPP & others Petition No. 9 of 2022**, we respectfully agree that: *“We respectfully agree that the petitioners, though interested parties before the superior courts below, cannot, at this juncture, have overriding interests above and beyond the primary parties or mutate from having a peripheral stake into central core parties complete with freshly and new formulated constitutional grounds that were not the issues determined by the court appealed from... wefind that the petitioners lacked the locus standi to institute this appeal.”* The 1st Interested Party does not have the right to appeal in the event adverse orders are made against him. This has the potential to gravely violate his constitutional rights, including the right to a fair hearing under Article 50 of the Constitution. A Petition that raises substantive and adverse orders against an Interested Party when such an Interested Party lacks the right to appeal if those orders are made against him is not properly before the court. The 1st Interested Party submitted that the petition is premature and offends the provisions of sections 62, 63, and 64 of the Public Officer Ethics Act, and sections 4 and 42 of the Leadership and Integrity Act, regarding the investigation, prosecution, and removal from office of public officers on grounds of Integrity. The legal regime is clear on the investigation, prosecution and removal from office of public officers on issues concerning leadership and integrity. The Petitioner has failed to demonstrate that the issues raised in the Petition were brought to the attention of the Respondents and the Interested parties before filing of this petition. The Court should decline an invitation to enter the arena of investigation and/or supervision of investigation into alleged actions whose occurrence has not been demonstrated. The Petition be struck out or dismissed with costs to the 1st Interested Party. The 3rd Interested Party submitted that the objections raised by the 1st Interested Party are well-founded and should be allowed. The court lacks jurisdiction to hear and determine a procurement dispute. The court, faced with a similar matter **in Awino v Mwangi & 5 others [2026] KEELRC 1478 (KLR),** held that it had no jurisdiction. The cause of action arose from public administration, ethics, and the integrity of public officers, and not from an employment dispute. There was no employer-employee relationship or any matter regarding the employment relationship. The jurisdiction of the court under Article 162(2)(a) of the Constitution and Section 12 of the Act gives the court the requisite jurisdiction to hear and determine the petition. The constitutional and statutory mandate to investigate, inquire into, and address allegations raised in the petition rests with specialised law enforcement agencies, including the Kenya Anti-Corruption Commission, and not with the court. In **Francis Curukia v Peter Gatirau Munya & 2 others [2017] eKLR**, the court held that the matter before it was criminal in nature and the court was not the correct forum to initiate such proceedings. The same position was applied in **Chepkemoi v Kinyua, General Manager, Kenya Railways Corporation & 6 others: Company (interested party) [2026] KEELRC 666 (KLR)**. The petition should be dismissed for want of court jurisdiction. The petitioner submitted that the objections raised by the 1st Interested Party are not on a pure point of law, as required by the principles established in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA**. A preliminary objection must be based on pure points of law and the pleadings. This position is reinstated in **IEBC v Jane Cheperenger & 2 others [2015] eKLR**, where the court held that objections must be founded upon uncontested facts and should never invite the court to resolve the dispute or evaluate the evidence. In **Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] eKLR**, the court cautioned that courts ought not to convert preliminary objections into a mini-trial by entertaining contested factual matters under the guise of determining pure questions of law. Thus, in **Owners of the Motor Vessel “Lillian S”**v**Caltex Oil (Kenya) LTD**. **[1989] KLR**, the principles established that objections must relate to the facts before the court. The objections herein seek to have the court determine that the Director General did not violate the Constitution, the Leadership and Integrity Act, the Public Officer Ethics Act, and other applicable statutes. Breaches of the Constitution are the central issue in the petition and call for evidence that cannot be determined at a preliminary stage. The questions of whether investigations have been conducted, whether statutory bodies have discharged their mandates, and whether constitutional enforcement mechanisms have been exhausted are up for determination. These are factual matters and dependent on evidence. The court is clothed with jurisdiction to hear constitutional petitions as held in **United States International University (USIU) v Attorney General [2012] eKLR** and **Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR**. The objections should be dismissed with costs. The 1st respondent opted not to take sides and to take the court directions. **Determination** The questions before the court are whether it has jurisdiction to hear and determine the petition, as the matters raised concern public procurement. And whether the petition offends section 62, 62, and 64 of the Public Officer Ethics Act and sections 4 and 42 of the Leadership and Integrity Act. On 1 June 2026, the petitioner filed the petition on the basis that, as a Kenyan citizen, taxpayer, governance advocate and public interest litigant pursuant to Article 22 and 258 of the Constitution, he is aggrieved by the actions of the 1st Interested Party, who, as the Director General and Accounting Officer of the Kenya Rural Roads Authority, the 2nd respondent, on 13 may 2025 a tender was advertised for upgrading to bitumen standard of the Mweiga-Brookside-Kimathi University Road. However, the 1st Interested Party caused the termination of the procurement process, which was inconsistent with the Public Procurement and Asset Disposal Act. In the petition, the petitioner is seeking various declarations, including an order directing the respondents to establish and enhance procurement compliance at the 2nd respondent, to file a compliance report, and to remove the 1st Interested Party from office. To begin with, the Supreme Court has now addressed itself with regard to the standing of persons litigating under Articles 22 and 258 of the Constitution as public interest litigators before the court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)**. In terms of Article 162(2)(a) of the Constitution and Section 12 of the Act, such is not a proper party before the court as there exists no direct or indirect employment relationship. Additionally, the petition concerns the procurement process for the Mweiga-Brookside-Kimathi University Road. The 1st Interested Party is alleged to have terminated the road construction procurement process without due process as required under the Public Procurement and Asset Disposal Act. The 3rd Interested Party submitted that the subject matter is under its investigation and is required under the Constitution and its constitutive statute. Although the petitioner seeks the removal from office of the 1st Interested Party, the fundamental and overriding issue in the petition is the procurement process. These, combined with the fact that the petitioner litigates in the public interest, deny the court the requisite jurisdiction to hear and determine the matter herein. The court observes that the petition was filed on 1 June 2026, and that the Supreme Court, as addressed above, rendered judgment on 3 June 2026, directing the parties to approach the court. The parties thus guided, the court without jurisdiction, the proceedings herein, and the objections by the 3rd Interested Party are well founded. **The petition is hereby struck out. Each party bears its costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**