https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2186

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E164 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **CONSUMER FEDERATION OF KENYA……………….…..PETITIONER** *VERSUS* **THE CABINET SECRETARY FOR THE NATIONAL TREASURY………………………………………..………...1ST RESPONDENT** **KENYA REVENUE AUTHORITY BOARD……….…..2ND RESPONDENT** **THE PUBLIC SERVICE COMMISSION……………….3RD RESPONDENT** **HON. ATTORNEY GENERAL …………………………..4TH RESPONDENT** **RULING** The Petitioner commenced the instant Petition vide a Petition dated 19th May 2026 challenging the appointment of the Interested Party as Commissioner General of the Kenya Revenue Authority for a period of three (3) years effective 18th May 2026 on the ground that as at the date of appointment, the Interested Party had attained the mandatory retirement age in the Public Service. The facts of the case are largely uncontested. Mr. Stephen Mutoro vide affidavit sworn on 19th May 2026 deponed that the Interested Party was born in or about 1963 and had attained retirement age and section 80(1) of the Public Service Commission Act (herein after PSC Act) created a narrow and exceptional post retirement contractual engagement regime grounded on demonstrable skill, necessity, rare skill competence and objective public interest justification and the Kenya Revenue Authority Act did not exempt the office of Commissioner General from Constitutional and statutory retirement framework in the Public Service. The Petition is based on Articles 1, 10, 19, 20, 21, 22, 258, 27, 41, 47, 73, 75 and 232 of the Constitution of Kenya. According to the Petitioner the impugned appointment is constitutionally and statutorily infirm for violating constitutional and statutory provisions in public service appointments, including rule of law, equality, meritocracy and equal access to public office, exercise of public power, misinterpretation and misapplication of Section 80(2) of the PSC Act and was a threat to constitutional governance, institutional integrity and public administration. By a Supplementary Affidavit sworn on 19th June 2026, Stephen Mutoro deponed that the Petitioner did not challenge the Interested Party’s integrity professional qualifications competence, experience or suitability for public service or participation of persons above sixty years in public life. The Petitioner prays for; 1. Declaration that Constitutional and Statutory retirement framework on public service forms part of the broader constitutional architecture intended to safeguard legality, orderly succession, institutional renewal, equal opportunity, meritocratic appointment and integrity in public administration. 2. Declaration that section 80(2) of the PSC Act established only a narrow and exceptional post-retirement engagement framework incapable of being interpreted or invoked in a manner that defeats or substantially undermines the prevailing constitutional and statutory retirement framework governing public service. 3. Declaration that section 80(2) of the PSC Act does not create an unrestricted or parallel pathway for fresh substantive appointment into public office outside the prevailing constitutional and statutory retirements framework governing public service. 4. In the alternative and without prejudice to prayer (c) above, a declaration that invocation of Section 80(2) of the PSC Act for purposes of fresh substantive appointment into public office must be strictly, transparently and demonstrably justified through objective evidence of necessity, indispensability, rare skill, rare competencies, unimpaired capacity and public interest justification. 5. Declaration that the office of Commissioner General of the Kenya Revenue Authority is subject to the prevailing constitutional and statutory retirement framework governing public service employment in Kenya. 6. Declaration that the Respondents either misunderstood, misapplied or unlawfully invoked the exceptional statutory authority contemplated under section 80(2) of the PSC Act in appointing the Interested Party as Commissioner General of the Kenya Revenue Authority. 7. A declaration that appointment of the Interested Party as Commissioner General of the Kenya Revenue Authority vide Gazette Notice No. 7393 dated 18th May 2026 is unconstitutional, unlawful null and void *ab initio.* 8. A declaration that the impugned appointment violates Articles 2, 3, 10, 27, 41, 73 and 232 of the Constitution of Kenya. 9. An order of *certiorari* do issued removing into this Honourable Court for purposes of being quashed and quashing Gazette Notice No. 7393 dated 18th May 2026 appointing the Interested Party as Commissioner General of the Kenya Revenue Authority. 10. An order of prohibition do issue restraining the Respondent whether jointly or severally by themselves, their officers, servants, agents, appointees or any person acting under that authority, for implementing, operationalizing, enforcing or in any manner whatsoever giving effect to Gazette Notice No. 7393 dated 18th May 2026 appointing the Interested Party as Commissioner-General of the Kenya Revenue Authority. 11. An order restraining the Interested Party from assuming, occupying, exercising discharging and/or continuing to exercise the powers, privileges duties and functions of the office of the Commissioner General of the Kenya Revenue Authority pursuant to the impugned Gazette Notice and 12. Such further, structural, preservatory, consequential or other relief be granted as this Honourable Court shall deem just fit and expedient for purposes of vindicating the constitution, preserving constitutional supremacy, safeguarding integrity in public appointments and restoring lawful governance within public administration. On 6th July 2026, the 1st and 4th Respondents, 2nd Respondent and the Interested Party filed Notices of Preliminary Objection of even date contending the Employment and Labour Relations Court (ELRC) had no jurisdiction to hear and determine the instant petition by dint of Articles 165 (3) (b) and 165 (5) (b) of the Constitution of Kenya as read together with the Supreme Court decision in Petition No. E030 (as Consolidated with E033 of 2025) **Moi University Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 76 others.** That the Petition did not disclose an employment and labour dispute and the Petitioner did not approach the court in a capacity recognized under the Employment and Labour Relations Court Act and other relevant statutes. That the Petitioner had no *locus standi* to institute and prosecute this petition. When the issue came ups on 7th July 2026, counsels agreed to canvass the Preliminary Objections by way of oral submissions. Mr. Kamau Karori SC Submitted that the court had no jurisdiction to hear and determine the instant petition because the petitioner was neither an employee of the 2nd Respondent nor an employer and was not one of the persons envisaged under section 12 (2) of the Employment and Labour Relations Court Act and was not seeking a private remedy. Mr. Kamau Karori urged that the petitioner was a civic organization and in this case it was acting in the public interest. Relying on paragraph 75 of the Judgment in SC PETITION No. E030 AS CONSOLIDATED WITH E033 of 2025 **Moi Teaching and Referral Hospital & 3 others** and further urge that the instant Petition ought to be litigated at the High Court under Article 165 (3) of the constitution of Kenya owing to the character of the Petitioner and the issues raised. Senior counsel submitted that, the Supreme Court of Kenya considered the jurisdiction of the Employment and Labour Relations Court under Article 162 (2) (a) and that of the High Court under Article 165 of the Constitution of Kenya to urge that the court had to down its tools for want of jurisdiction. Jepkemei for the 1st and 4th Respondents submitted that her Notice of Preliminary objection reiterated the legal position of the Supreme Court in its Judgment of 3rd July 2026 in **Moi University Teaching and Referral Hospital Case (Supra)** and the decision was binding on this court. Counsel submitted that a party suing in a capacity outside those recognized by the Employment and Labour Relations Court Act could only do so at the High Court Counsel urged the court to uphold the Preliminary Objection. Mr. Nyaburi for the Interested Party stated that he associated himself with the submissions of Kamau Karuri SC and Jepkemei and submitted under paragraph 70 of the Judgment, the Supreme Court delineated the Court’s jurisdiction in matters filed by the parties mentioned in section 12 of the Employment and Labour Relations Court Act and urged that the Petitioner was an outsider and its recourse was in the High Court. Counsel submitted that the court had no jurisdiction to hear and determine the petition. On transfer of the suit to the High Court if the court held that it had no jurisdiction, counsel submitted that under paragraph 71 of the judgment the Supreme Court made it clear that the ELRC and the High Court were distinct and autonomous and the court could not transfer the matter if the Preliminary Objection was upheld. Manani for the 3rd Respondent stated, that her submissions related to the Petition exclusively since the findings of the Supreme Court were arguable in other circumstances and associated herself with the submissions of Kamau Karori SC Mr. Nyaburi and Jepkemei. Counsel submitted that since the instant petition was a pre-employment dispute, the decision of the Supreme Court was binding on this court. In his response Senior Counsel Mr. Theuri explained that the decision of the Supreme Court arose out of a Preliminary Objection filed by the Attorney General & others challenging the jurisdiction of the High Court to hear and determine the matter, arguing that the matter fell within the jurisdiction of the ELRC and both the High Court and Court of Appeal overruled the Preliminary Objection. Senior Counsel Theuri submitted that paragraphs 68, 70, and 76 of the judgment encapsulated the reasoning of the court and the consolidated appeals were partially allowed and the court set aside the decision of the Court of Appeal on the finding to the extent that the ELRC had no jurisdiction to hear and determine pre-employment disputes. Counsel submitted that to that extent, the submissions made were not in accord with the final orders of the court and the Supreme Court allowed the petition before the High Court to proceed. Counsel submitted that the decision of the Supreme Court settled the jurisdictional question of the ELRC to hear and determine disputes relating to pre-employment. Counsel urged the court to dismiss the Preliminary Objection but if it found that it had not jurisdiction, that the file be transferred to the High Court for hearing and determination of the suit as it had inherent power to do so and the High Court did so routinely. In a rejoinder, Mr. Kamau Karori SC, submitted that paragraphs 70, 73 and 75 of the judgment reflected the court’s determination of the jurisdictional question including the dispositive part of the judgment and the High Court was the proper court to hear and determine the suit. On transfer of the suit to the High Court, counsel submitted that the ELRC though of the same status as the High Court, was separate and distinct and no law had been cited as the basis of the transfer of the suit to another court and the court could not do so. Counsel submitted that if the court found that it had no jurisdiction, it would have no choice but to down its tools and strike out the petition and no other order was feasible. Counsel urged the court to allow the Preliminary Objection and decline the invitation to transfer the suit to the High Court as submitted by Mr. Theuri SC. Mr. Nyaburi contended that in paragraph 70 of the judgment, the Supreme Court made a distinction between suits filed by the parties to the dispute and those instituted by other persons and the instant petition fell in that other category and the High Court had jurisdiction. Manani for the Public service commission submitted that the court could not transfer the matter to another court as it had no jurisdiction to hear and determine it. Since the three Notices of Preliminary Objection are challenging the jurisdiction of the ELRC to hear and determine the instant petition on the basis of a decision of the supreme court, which binds this court, the court is satisfied that the Notices of Preliminary Objection meet the threshold in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.** All the Notices of Preliminary Objection on record are challenging the court’s jurisdiction on the basis of the Supreme Court decision in **Moi Teaching and Referral Hospital & 3 others v Dr. Magare Gikenyi & 76 others** delivered on 23rd May 2026 and the Notices of Preliminary Objection are in unison that the Employment and Labour Relations Court (ELRC) has no jurisdiction to hear and determine the suit by dint of the decision of the Supreme Court. It is trite law that jurisdiction is everything as aptly captured by the celebrated sentiments of Nyarangi, JA in **Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd (1989) eKLR as follows;** *“Jurisdiction is everything. Without it, a court has no power to make one more step. When a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”* The learned Judge of Appeal proceeded to explain the concept of jurisdiction in his judgment. See also in this regard, **Lemita Ole Lemein v Attorney General & 2 others (2020) Eklr.** As held in **Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (2012) eKLR**, court derives its jurisdiction from constitution or an Act of parliament or both and the relevant provisions prescribe the scope of the jurisdiction conferred. A court of law cannot exercise jurisdiction it does not possess as by law required. Needless to belabour, the ELRC derives its jurisdiction from the provisions of Article No.162 (2) (a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act. Questions surrounding the jurisdiction of the ELRC have been addressed in a catena of decisions of courts generally such as, **Karisa Chengo & 2 others v Republic, Paramount Bank Ltd v Vavui Syed Qamara & another (2017) eKLR Hassan Magiya Kiage v Attorney General & another (2017) eKLR, Professor Daniel N. Mugendi v Kenyatta University & others (2013) eKLR United States International University (USIU) V Attorney General (2012) eKLR, Governor County Government of Kakamega & 4 others v Omweno & 12 others (2025) KECA 190 (KLR), Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (2024) KESC 3 (KLR) and finally Moi Teaching & Referral Hospital & others v Dr. Gikenyi Magare & others (Supra)** which is the principal focus in this ruling and which involved a pre-employment procedures and processes. First, the Supreme court was unambiguous that the ELRC has jurisdiction to hear and determine disputes beyond an employer and employee by dint of Article 162 (2) (a) of the Constitution of Kenya and Section 12(1) of the Employment and Labour Relations Court Act. The latter which exemplifies the categories of disputes the ELRC can hear and determine is inexhaustive by use of the term ‘including’ The Court stated: *“…It was therefore an error for both courts to restrict the jurisdiction of the ELRC only to industrial disputes involving employers and employees.”* As to whether ELRC has jurisdiction to hear and determine disputes on pre-employment processes and procedures, the court held that indeed the court was clothed with jurisdiction to do so. The court 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 the ELRC is not exhaustive. A part from listing persons, entities and offices that by definition do not qualify as employees or employer 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 Ac,t 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 officers can sue or be sued before the ELRC. The statutes further provide the pre-employment grievances involving those categories are justiciable in the ELRC. An dispute beyond those explicitly stated class must be instituted in the High Court.”* The import of the foregoing proposition of the Supreme Court is that persons who do not fall within the classes of persons identified by the ELRC Act, the Employment Act, the Labour Relations Act and the Labour Institutions Act cannot litigate a pre-employment grievance before the ELRC. Thus, the ELRC has no jurisdiction to hear and determine a pre-employment dispute filed by a person who falls outside the categories or class defined by the statutes. It is not in dispute that the petitioner herein is a registered public interest consumer rights, accountability and governance transparency organization and instituted the instant petition in the public interest and invoked the court’s jurisdiction under Articles 22, 23, 162(2) (a) and 258 of the Constitution of Kenya. Granted that the Petitioner is not among the class of persons identified by an Act of Parliament as capable of instituting a pre-employment grievance before the ELRC and the proper forum is the High Court, this court lacks jurisdiction to hear and determine the instant petition. To underscore the fact that the High Court, Environment and Land court and the Employment and Labour Relations Court were separate and distinct courts with exclusive jurisdictions, the Supreme Court stated. *“Having so stated, we reiterate the ratio decidendi, in ‘Republic v 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 taken, the ELC and the ELRC too, cannot hear matters reserved for the High Court by Constitution.”* In the Supreme Court decision cited above, the grievance before the High Court was the recruitment process of four(4) Chief Executive Officers and the court dismissed a preliminary objection challenging its jurisdiction to hear and defence the petitions which the appellants appealed but the court dismissed it for want of merit. The Court of Appeal was satisfied that the Petitioners were in the correct forum to prosecute their petition. Notably, the petitioners in that case did not petition the court under any of the class of persons or offices identified under section 12(2) of the Employment and Labour Relations Court Act. Both the Supreme Court and the Court of Appeal held that the High court had jurisdiction to hear and determine the suit as opposed to the ELRC. The foregoing leaves no doubt that the ELRC has no jurisdiction to hear and determine the instant petition and the proper forum is the High Court. Consequently, this court has not alternative by to down its tools on the matter. Finally, Senior Counsel Mr. Eric Thuri for the Petitioner submitted that in the event the court found that it had no jurisdiction, the proper course would be to transfer the suit to the High Court, a submission counsels for the Respondents and Interested Party opposed urging that the only option open to the court was to strike out the petition. The issue as to whether a court can transfer a matter over which it had no jurisdiction has been considered and settled in previous decisions. It is trite law that if a court has no jurisdiction over a suit before it, the suit is a nullity in law without more, and nothing can be done to it as Court held in **Macfoy v United Africa Co. Ltd (196) 3 ALLER 1169.** *“…And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”* See also **Joseph Muthee Kamau & another v David Mwangi Gichure & another (2013) eKLR** which cited **Kagenyi v Musirambo (1968) E.A 43.** In **Equity Bank Ltd v Bruce Mutile Mutuku t/a Diani, Tours and Travel (2016) eKLR,** the Court of Appeal held: *“In numerous decided cases, courts, including this court have held that it would be illegal for the High Court in exercise of its powers under section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit.* *This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign…* *In the same way a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.”* See also Diamond Trust Bank Kenya Ltd v Mutubia & another (2026) KECA 1001 (KLR) where the court held that; *“It is trite law that where a suit is filed in a court without the requisite jurisdiction, it is a nullity ab initio and, consequently all proceedings/orders founded thereon are null and void.* *This principle was enunciated in this court’s decision in Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR) where the court pronounced itself on the fundamental requirement of jurisdiction in every suit in the following words…”* The upshot of the foregoing is that since a suit filed in a court without jurisdiction is void or a legal nullity, the suit cannot be transferred because there is nothing to transfer. Although counsel for the petitioner submitted that the court had inherent jurisdiction to transfer the petition to the High Court for hearing and determination, it cannot do so in light binding judicial authorities. In the upshot, the Petitioner’s petition dated 19th May 2026 is hereby struck out for want of jurisdictions. Parties shall bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF JULY, 2026** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**