https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12602

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CONSTITUTIONAL PETITION NO. E007 OF 2026** **SHARON CHEPNGETICH …………………………….. 1ST PETITIONER** **VARSITY CHEPKEMOI ……………………….………. 2ND PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT OF BOMET …... 1ST RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER** **FOR FINANCE, ICT AND ECONOMIC** **PLANNING ……..……………………………………... 2ND RESPONDENT** **COUNTY PUBLIC SERVICE BOARD ……………. 3RD RESPONDENT** **COUNTY TREASURY, BOMET COUNTY ……… 4TH RESPONDENT** **AND** **THE CONTROLLER OF BUDGET ……………. INTERESTED PARTY** **RULING** 1. The 3rd Respondent raised a Preliminary Objection dated 20th July 2026 raising the following points of law: - 2. That this Honourable Court lacks the requisite jurisdiction to hear and determine this Petition in the first instance; the matters raised pertain to employer-employee relations and are exclusively reserved for the Employment and Labour Relations Court (ELRC) under **Article 162 (2) of the Constitution of Kenya** and **section 12 of the Industrial Court Act.** 3. That the Petitioners have failed to invoke and exhaust the mandatory mechanisms stipulated under **section 77 of the County Governments Act,** **section 87 of the Public Service Commission Act** and the **Fair Administrative Act** before approaching this court in particular: - 4. By dint of **section 77 (2) of the County Governments Act**, the Petitioners are obligated to lodge an appeal before the Public Service Commission (PSC) which they have failed to do. 5. **Sections 85-87 of the Public Service Commissions Act, 2017,** require exhaustion of the Public Service Commission (PSC) appeal mechanism priory to invoking the court’s jurisdiction. 6. That the Petition is therefore premature and violates the doctrine of exhaustion under **section 9 of the Fair Administrative Act** and reiterated by the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR).** 7. That the Petition fails to meet the constitutional pleading threshold as it does not disclose, with reasonable precision, the specific constitutional provisions alleged to have been violated, or in the manner in which the 3rd Respondent is said to have infringed the Petitioner’s rights. 8. That **section 59 of the County Governments Act, 2012** provides that the Public Service Board functions and acts on behalf of the County Government. 9. That under **section 107 (1) of the Public Finance Management Act, 2012** and **Regulation 25(1) (a) and (b) of the Public Finance Management (County Government) Regulations 2015,** the responsibility or mandate of managing public finances to ensure the same is in accordance with the principles of fiscal responsibility and ensuring it does not exceed the set limits is granted to the County Treasury. 10. That the Petitioners did not file an affidavit in support of the Petition setting out the factual and evidentiary foundation of the alleged constitutional violations. Paragraph 2 of the 2 undated Affidavits sworn by Sharon Chepngetich clearly stated that both Affidavits are in support of the Application for conservatory orders filed therewith contrary to the requirements of **Rule 10 (1) and Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.** 11. That the documents referred to in the Petition were not annexed to the Petition contrary to the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.** 12. That the Petitioners have not filed the actual approved budget for the FY 2026/2027 leaving the court to speculate on whether the wage bill in the actual budget surpasses the set statutory limit. 13. That public participation is not among activities to be undertaken during the shortlisting exercise. 14. That the Petition is premature, misconceived, incompetent and an abuse of the court process, incapable of practical enforcement and ought to be dismissed with costs. 15. Through its written submissions dated 28th July 2026, the 3rd Respondent submitted that this court lacked jurisdiction to determine the Petition as the matters raised which include the 3rd Respondent’s decision to advertise, carry out recruitment as per the advertisement, shortlisting and interviews, national values and principles of public service under **Article 232 of the Constitution of Kenya** fall within the Appellable matters under these laws. It relied on **Nyaoga v Chairman, Kisii County Assembly & 3 others [2023] KECA [1540] KLR et.al.** That the Petition was premature and violated the provisions of **section 9 of the Fair Administrative Action Act.** 16. It was the 3rd Respondent’s submission that the Petition was fatally defective for lacking supporting evidence. That it was not supported with affidavit evidence and documents to be relied upon. It was the 3rd Respondent’s further submission that the Petition did not disclose with reasonable precision the specific constitutional provisions. **1st, 2nd and 4th Respondent’s written submissions** 1. Through their written submissions dated 26th June 2026, the 1st, 2nd and 4th Respondents submitted that this court lacked jurisdiction to determine the Petition as the same was vested in the Employment and Labour Relations Court as the orders sought related to shortlisting, interviewing and appointment of officers to offices in the County Public Service. They relied on **Samuel Kamau Macharia & another vs Kenya Commercial Bank & 2 others (2012) eKLR.** **5th Respondent’s written submissions** 1. Through its written submissions dated 29th July 2026, the 5th Respondent echoed the 1st, 2nd, 3rd and 4th Respondents’ position that this court lacked jurisdiction to determine the Petition. It relied on **section 77 of the County Governments Act, Kenya County Government Workers Union v Nyeri County Government & another (2019) eKLR et.al.** **The Petitioners’ written submissions** 1. Through their written submissions dated 31st July 2026, the Petitioners submitted that this court had jurisdiction to determine the Petition. That the Petitioners are residents and taxpayers suing under **Articles 22** and **258 of the Constitution** to enforce fiscal responsibility principles under **Article 201, section 107 of the Public Finance Management Act** and **Regulation 25 of the Public Finance Management (County Governments) Regulations, 2015.** The Petitioners further submitted that the Constitution vested this court with jurisdiction over the interpretation of the Constitution and questions of inconsistency between law or conduct and the Constitution. 2. What constitutes a Preliminary Objection was set out in the case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696,** where it was held that: - ***“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point 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… a Preliminary Objection is in the nature of what used to be a demurrer. 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 had to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. The 3rd Respondent challenged this court’s jurisdiction stating that matters set to be adjudicated related were centered on employer-employee relations and were a preserve of the Employment and Labour Relations Court. 2. Jurisdiction is defined in the **Black’s Law Dictionary, 10th Edition** as: - **A court’s power to decide a case or issue a decree.** 1. The Court of Appeal in **Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated)) [2022] KECA 15 (KLR) (8 February 2022) (Judgment)** discussed the issue of jurisdiction to wit: - ***“Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:*** ***“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”*** ***The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:*** ***“…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.”*** ***A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.*** ***The Supreme Court In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:*** ***“…a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.”*** ***In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:*** ***“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 itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. From a reading of the Petition, the Petitioners sought among others, a conservatory order suspending the ongoing recruitment exercise to include all ongoing interviews, appointments, issuance of appointment letters and assumption of office and placement on the County payroll. Recently, the Supreme Court of Kenya gave clarity on the disputed jurisdiction between the High Court and Employment and Labour Relations Court in pre-employment disputes. In **SC PT No. E030 as consolidated with E033 of 2025, Moi Teaching and Referral Hospital and others v Dr. Magare Gikenyi and others,** the Supreme Court of Kenya held: - ***“Based on our own interpretation and application of Articles 162 (2)(a) and 165(3)(b) of the Constitution, read together with the provisions of the relevant statutes dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC. The jurisdiction of the ELRC therefore goes beyond resolving employer-employee disputes. The list in Section 12 of ELRC is not exhaustive. Apart from listing persons, entities, and offices that by definition do not qualify as employees or employers, the Act, in explicit terms, extends the jurisdiction of the ELRC as may be conferred by any other law in respect of employment and labour relations. The three written laws, the Employment Act, the Labour Relations Act, and the Labour Institutions Act, create additional categories of persons and offices who have access to the court but who are neither employees nor employers. They provide in plain language that this category of persons and offices can sue or be sued before the ELRC. The statutes further provide that pre-employment grievances involving those categories are justiciable in the ELRC. Any dispute beyond those explicitly stated class must be instituted in the High Court.*** ***Having so stated, we reiterate the ratio decidendi in Republic Vs Chengo & 2 others (supra), that courts of equal status exercise sui generis jurisdiction; that by being equated in status with the High Court does not imply that either the ELC or the ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions; the High Court is precluded from entertaining matters reserved for the Supreme Court, ELC, and the ELRC. By the same token, the ELC and the ELRC, too, cannot hear matters reserved for the High Court by the Constitution.”*** (Emphasis mine) 1. As stated earlier, the Petitioners’ bone of contention was alleged breaches of their constitutional rights in a pre-employment exercise between them and the Respondents. As was found by the Supreme Court above, such disputes are the exclusive domain and jurisdiction of the Employment and Labour Relations Act. In any event, a similar matter has been filed in the Employment and Labour Relations Court in Kericho being Petition Number E008 of 2026 against the 1st and 3rd Respondent. The Petition seeks the same prayers as the present Petition. 2. **Section 8(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** provides: - **Despite sub rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party.** 1. From the foregoing I find no need to consider the other issues raised in the Preliminary Objection in view of my directions to follow. 2. Based on the above provision, and in view of the existence of the Kericho Employment and Labour Relations Court Petition Number E008 of 2026, I hereby transfer this matter to the Employment and Labour Relations Court in Kericho for determination. I find that the said Court is of competent jurisdiction to handle this matter in view of the issues raised. Each party to bear its own costs. This file is marked as closed. **Ruling delivered via CTS on this 6th day of August, 2026 as directed by the Court.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE**