https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2389

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E223 OF 2026** **KENNEDY OMOLLOH AYAKOH PETITIONER** *VERSUS* **NATIONAL SOCIAL SECURITY FUND RESPONDENT** **RULING** The respondent filed a Notice of Preliminary Objections dated 7 July 2026. The objections are to the petition on the grounds: 1. *The petition is fatally defective and an abuse of the process of the court, as the petitioner has failed to exhaust the available internal remedies prior to the institution of the present petition contrary to the doctrine of exhaustion.* 2. *Other objections are that the doctrine of exhaustion is a mandatory precondition to litigation where a regulatory body provides for an internal dispute resolution mechanism. The petitioner is therefore barred from invoking the court's jurisdiction.* 3. *Pursuant to the respondent’s HR Policies & Procedure Manual, Document No. In SF/HRM/PD/01, Issue No. 4, at section 12, the petitioner was required to abide by the stipulations therein, in terms of section 12.4.1 as read with section 12.5, but he did not. …* 4. *The court lacks jurisdiction to hear and determine the petition at this juncture for want of exhaustion of remedies.* 5. *The court is bereft of jurisdiction to entertain the petition at this stage as matters that are substantially in issue constitute the pre-employment recruitment process which do not fall within the provisions of section 12 of the Employment and Labour Relations Court Act. This position is now in the Supreme Court,* ***Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR).*** 6. *The petition is otherwise premature, incompetent and ought to be struck out with costs.* On the objections, the Respondent submitted that objections are allowed at any stage of litigation as held in **Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd [1969] EA.** In this case, the petitioner has not exhausted internal grievance resolution mechanisms, which should have been invoked before moving the court. The doctrine of exhaustion is addressed in **Mke Munyasya v KNUT & another, Cause No. E457 of 2023**, where the court struck out a suit for lack of exhaustion of internal dispute resolution procedures. In this case, the petitioner has approached the court prematurely. The issues set out in the petition relate to the pre-employment recruitment process and do not fall within the court's jurisdiction. In **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR),** the Supreme Court of Kenya has held that disputes arising from pre-employment recruitment processes do not strictly fall within the court's jurisdiction. Despite the Petitioner's relationship with the Respondent, the issue at hand is pre-emptive and concerns the recruitment process. It has nothing to do with his substantive position. The Petitioner has failed to establish a constitutional violation on which he bases his petition. The allegations made do not satisfy the threshold required for a constitutional petition under the Constitution. The allegations made are speculative, generalised and unsupported by evidence. There is no pleading of any constitutional violations with a degree of precision required by law, identifying the specific constitutional provisions allegedly violated and the manner of the alleged violation. The petition fails the test set out in **Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR).** The petitioner has not approached the court with clean hands as averred by Hellen Wasike in the respondent’s Replying Affidavit. The objections should be allowed with costs. The Petitioner submitted that the Respondent’s conduct, actions and omissions in conducting interviews and offering employment violate and disregard the law and his constitutional rights principles and statutory requirements. The Respondent’s actions of directly contacting the favoured applicants and notifying them of the date and place of interviews, not based on merit and due process despite failing to issue the list of applicants, undermine the Petitioner’s right to access information on the recruitment process. Failure to publish a list of shortlisted applicants for interview for the various positions by the Respondent violates the right to access information and fair administrative action under Articles 35 and 47, including values and principles of public service. It breaches the Petitioner's legitimate expectation that the Respondent would comply with the Human Resource Manual and its procedures. The Respondent has failed to undertake a meaningful and procedural recruitment process, contrary to Articles 10 and 232 of the Constitution, before making a decision affecting socio-economic entitlements, including the Petitioner’s growth and personal advancement. Under Article 3(1) on the duty to respect, uphold and defend the Constitution, which is the Petitioner’s constitutional right to do. The Petition satisfies the threshold under Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and meets the test set out in **Anarita Karimi Njeru v Republic[1979] KEHC 30 (KLR)** and **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR).** The petitioner submitted that his case is premised on the Respondent’s refusal to issue the list of shortlisted applicants for interviews, directly contacting the favoured applicants to notify them of the date and place of interviews, and excluding him pursuant to the circular dated 19 May 2026. The constitutional provisions violated, including Articles 10, 27, 35, 47 and 232, with the specific reliefs sought. The Respondent as an institution is not shielded from judicial scrutiny where constitutional violations are alleged. The Court has jurisdiction under Articles 22, 23 and 165(3)(d)(ii) to interrogate the Respondent’s administrative actions, rebut the presumption of constitutionality, and grant appropriate relief to protect the rights of the Petitioner. The Respondent has contravened the values and principles of public service by depriving the Petitioner access to information, adequate and equal opportunity for appointment, training and advancement in accordance with Article 232. The Respondent discriminately handpicked preferred applicants who were contacted directly for interview, at the exclusion of the Petitioner, thereby flouting its own internal recruitment procedures as per the Human Resource Manual and lacking transparency, accountability and inclusivity. On the objections and reliance on Section 12 of the Employment and Labour Relations Act, the Petitioner submitted that the doctrine of exhaustion is not absolute. In **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**, the court held that Courts may be approached directly where a matter raises pure constitutional issues or where alternative remedies are inadequate. The objections should be dismissed to allow the petitioner a fair chance to urge his case. **Determination** The objections are premised on the doctrine of exhaustion and on the court's lack of jurisdiction to hear the petition because, although the petitioner is an employee of the respondent, the cause of action arose from a speculative pre-employment recruitment process. It is admitted that the petitioner is an employee of the respondent. On 18 May 2026, the respondent internally advertised for various positions, and the petitioner submitted his application dated 3 June 2026 for the position of Principal Compliance Officer (Branch Manager). The response to the petition was that the petitioner was not shortlisted since he did not meet the minimum requirements for the position applied for. He was thus not progressed to the shortlist or interview stage, part of which is still ongoing. Aggrieved, the petitioner should have lodged a grievance internally to allow a review or an appeal. This would have allowed the respondent to advise that he had not met the minimum requirements for the position applied for, including having no professional qualification for the job, no professional membership in good standing, no management course, and no experience in any management position. On the court jurisdiction, the Supreme Court of Kenya in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** has held that the court should address pre-employment disputes. This includes a prospective employee and employer, and where there are grievances relating to the recruitment and the petitioner was an applicant, the court is the forum to urge his case. Section 12 of the Employment and Labour Relations Court Act directly applies to the petitioner. Equally, where the petitioner asserts a case of discriminatory treatment against him by the respondent, section 5 of the Employment Act and article 27 of the Constitution place him before the court. The court has the requisite jurisdiction to hear the case. On the case that the petitioner applied for the position of Principal Compliance Manager (Branch Manager) with the respondent on 3 June 2026, he was not shortlisted. His case is that others were contacted directly and interviewed. The objections are that under the respondent’s HR Policy & Procedure Manual, section 12 requires the petitioner to lodge a written complaint with his line manager. Such would have been escalated to the next manager under section 12.5.2 of the HR Policy. The HR Policy allows the grievance to be determined through the respondent's internal mechanisms. Under the exhaustion doctrine, it is imperative that, where a dispute resolution mechanism exists outside the courts, the same be exhausted before the courts' jurisdiction is invoked. Courts ought to be the fora of last resort and not the first port of call for every grievance at the shop floor. The exhaustion doctrine is sound and serves the purpose of postponing judicial consideration of matters, ensuring that a party is first of all diligent in protecting his interests through the mechanisms in place for resolution outside the courts. This accords with Article 159 of the Constitution, which commands Courts to encourage alternative means of dispute resolution, as held in **Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR).** In this regard, the doctrine of exhaustion applies even where what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. The respondent’s HR Policy thus provides sufficient safeguards for the valid determination of various grievances arising on the shop floor, including those related to internal recruitment procedures. By failing to address his grievance internally under the HR Policy, the petitioner effectively exhausted the available remedies and short-circuited the process by filing the petition prematurely. I have gone back to the petitioner’s application dated 3 June 2026 for the position of Principal Compliance Officer. It was in response to the internal advertisement posted on 19 May 2026. The applicants were required to apply the application procedures contained in the respondent’s Fund’s Intranet – Web Talk. Each position has stated minimum requirements. Did the petitioner meet the required threshold and minimum requirements? Aggrieved, section 12 of the HR Policy provides detailed grievance-handling mechanisms, including escalating the matter to the line manager or submitting collective grievances through the department. The court finds no exceptional circumstances warranting hearing of the petition, as the petitioner has not exhausted the internal grievance-handling mechanisms. As an employee of the respondent, he is subject to the HR Policy. **Although the court is clothed with the requisite jurisdiction to hear the petition, the petition herein is premature, and to this extent the objection by the respondent dated 7 July 2026 is with merit. The petition is struck out. For the continued employment of the petitioner and industrial peace, no orders on costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………