https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1410

Chesang & another v Wainaina & 4 others (Constitutional Petition E253 of 2025) [2026] KEELRC 1410 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1410 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Constitutional Petition E253 of 2025 JW Keli, J May 15, 2026 IN THE MATTER OF CHAPTER 6 OF THE CONSTITUTION AND IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 41 OF THE CONSTITUTION AND IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 47 OF THE CONSTITUTION AND MWONGOZO-CODE OF GOVERNANCE FOR STATE CORPORATIONS (2015) Between Elizabeth Chesang 1st Petitioner Rosemary Wanjiru Gichuhi 2nd Petitioner and Prof Paul Kuria Wainaina 1st Respondent Kenyatta University 2nd Respondent Public Service Commission. 3rd Respondent Cabinet Secretary Ministry of Education 4th Respondent Paul Owuor Okemo 5th Respondent Ruling 1.The petitioners, alleging to be taxpayers with legitimate interest in the lawful governance, transparency and accountability of the Kenyatta university filed a petition dated 1st December 2025 seeking for the following orders –a)An order compelling the 1st Respondent to take terminal leave for the remainder of his term as a vice chancellor.b)There be a stay of all appointments, promotions and revocation of University Staff during the last 6 months to expiry of the 1st Respondents office pending the inquiry of their legality.c)An order revoking the appointment of Prof. Paul Owuor Okemo as the acting DVC Administration and Finance beyond his initial period of 6 months commencing 21/05/2025.d)The revocation, appointment and promotion of substantive office holders during the last 6 months of the 1st Respondents term, including but not limited to the Director City Campus, Director Linkages and International Programs, Director Confucius Institute, Dean Graduate School, Registrar Administration, Registrar Corporate Affairs and transfer of secretariat staff to council to city campus be brought to court for purposes of the court satisfying itself on their legality.e)The University Council be reconstituted.f)The Honourable Court grants such other orders as it shall deem just.g)Costs of this Petition be borne by the Respondents. 2.The 1st petitioner filed a supporting affidavit dated 1st December 2025 on behalf of the petitioners and exhibited the Mwongozo Code of Governance of State Corporations, government circulars on terminal leave by public officers, a copy of the university management board meeting of 15th July 2025 on recruitment of new Vice Chancellor and copy of the University Council minutes setting the criteria for appointment of the vice chancellor. 3.The 1st and 5th respondents in response filed Notice of Preliminary Objection dated 15th December 2025 seeking the petition and the interlocutory motions to be struck off in limine for want of jurisdiction. The 2nd respondent filed similar objection dated 10th December 2025. Decision 4.The court directed that the preliminary objections challenging the jurisdiction of the court be first canvassed through a written submission. The parties complied. 5At the outset, it is important to note that the petitioners had not stated that they had applied for the position, and that their role was in the public interest, alleging a contravention of the Constitution in the recruitment process of the new vice chancellor. The jurisdiction of the court is as stated in Article 162(2)(a)-‘ 2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations;’ Parliament pursuant to the foregoing legislated the court under Employment and Labour relations Court act section 12 as follows- ‘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.’’ Conversely, the High Court under article 165 (3(b) is given jurisdiction as follows-‘(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;’ The High Court jurisdiction is qualified to exclude the jurisdiction under Article 162(2)(a) of this Court. The Supreme Court stated with finality that the Court had jurisdiction over constitutional petitions challenging the constitutionality of legislation and constitutional violations within the spectrum of employment and labour issues. 6.The Supreme Court in Petition No. E004 Of 2023 As Consolidated With Petition No. E002 Of 2023- Kenya Tea Growers Association & 14 others v National Social Security Fund Board of Trustees(Koome; CJ & P, Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ) pronounced itself on the jurisdiction of the court in constitutional petitions as follows-‘81] We now come to the specific question whether the ELRC correctly assumed jurisdiction to determine the constitutional validity of the NSSF Act 2013. Towards this end, we are persuaded by the appellants’ argument to the effect that the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act 2013, in holding that the matter before the ELRC did not emanate from an “employer-employee” dispute…….What were the appellants complaining about? From the proceedings as re-enacted in this Judgment, whether rightly or wrongly, they complained among others, about the burdensome nature of the new contributions to the scheme that had been introduced by the NSSF Act 2013. They complained about the enhanced powers of the Cabinet Secretary for Labour over the management of their Scheme. They complained about the legality of a Fund premised on an employer and employee relationship. They complained about the negative effect the new law would have on the existing Collective Bargaining Agreements (CBAs). [83] Can it be said that the parties herein are not among the disputants contemplated under Section 12(2) of the ELRC Act? Even where the Act stipulates that a complaint, application or suit may be lodged against the Cabinet Secretary for Labour or any office established by law for that purpose? Or that the nature of the dispute is not one that falls within the jurisdiction of the ELRC, even where, as in this case, both employers and employees, trade unions, and workers associations are decrying what they consider to be the adverse effect of a new law on their working conditions? We are in agreement with the Court of Appeal to the effect that this dispute did not arise strictly from an employer-employee relationship. But what about the other aspects of the dispute? What meaning is to be ascribed to the phrase “labour relations”?’ The court read the decision to mean that the petition must disclose employer's employee relations, employment disputes and fall in the realm of employment and relations for the court to have jurisdiction. 7.Does the court have jurisdiction in a recruitment process challenged by a private citizen asserting public interest, but not an employment dispute? The petitioner are not candidates in the process. The respondent’s relied on the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil AppealE107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR) (23 May 2025) (Judgment) where the court held there was no employer-employee relationship hence the court had no jurisdiction. The Court of Appeal held –‘The 1st to 7th respondents originated the petition not as employees of the four parastatals but as citizens seeking to enforce the Rule of law. There being no employer-employee relationship as required by Section 12 of the Act, we are persuaded that the issues raised in the petition fall within the jurisdiction of the High Court. Therefore, we find no reason to fault the learned judge for dismissing the objection based on this ground. As the High Court correctly noted, the grievance is not a dispute between employer and employee but rather an unconstitutional recruitment in contravention of the Constitution based on ethnic considerations and not meritocracy. In so finding, we are guided by the Supreme Court decision in the KTGA Case that: “ 79. In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute.’ I find the Moi Referral case cited above, holding , on the jurisdiction fits in the instant case as the petitioners are not in employment relations with the respondent. They are not employees in the university or even applicants for the impugned position. 8Had the petitioners applied for the position and alleged discrimination in the recruitment process the court would have held that it had jurisdiction pursuant to section 5(3) of the Employment Act to wit- ‘No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee—(a)on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status;(b)in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.’(emphasis given). I uphold the decision of the Court of Appeal in this case and to hold that I have no jurisdiction in the matter, as no apparent employer-employee relationship was disclosed in the dispute, as the petitioners were not in employment relations with the university as contemplated in the Employment Act. Whether the respondents violated constitutional principles in the recruitment process can only fall under Article 165(3)(b) of the Constitution, the petitioner being a stranger in the process, and having come to court purely in the public interest to protect the Constitution. 9.The petition is struck out for want of jurisdiction. The Notice of preliminary objections by the 1st and 5th respondents dated 15th December 2025 and by the 2nd respondent dated 10th December 2025 are allowed. No cost is awarded as the petition was filed in public interest. 10.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.15/05/2026IN THE PRESENCE OF:Court Assistant: OtienoApplicant/2nd Respondent for P.O. : Michael WanyamaPetitioners/Respondent: Alwanga (Ms) holding brief Odhiambo