https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2060

Consumer Federation of Kenya v Cabinet Secretary FR Energy and Petroleum & 4 others (Petition E153 of 2026) [2026] KEELRC 2060 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2060 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E153 of 2026 M Mbarũ, J July 16, 2026 Between Consumer Federation of Kenya Petitioner and The Cabinet Secretary FR Energy and Petroleum 1st Respondent The Board of Directors of Kenya Electricity Transmission Company Limited 2nd Respondent Kenya electricity Transmission Company Limited 3rd Respondent The Hon Attorney General 4th Respondent and Eng Kipkemoi Kibias Interested Party Ruling 1.The petitioner filed the petition and Notice of Motion both dated 11 May 2026. 2.In reply and opposition, the 2nd and 3rd respondents filed Notice of Preliminary Objections dated 21 May 2026. 3.On 2 June 2026, the 1st and 4th respondents filed a Notice of Preliminary Objections to the petition. 4.The objections by the 1st and 4th respondents are that:a.The court lacks jurisdiction to hear and determine the petition as the dispute concerns the interpretation and legality of statutory qualification for appointment to public office under section 22(3) of the Government Owned Enterprises Act, 2025 and not an employer-employee or labour relations dispute contemplated under article 162(2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act.b.The issues raised in the petition fall under the jurisdiction of the High Court under Article 165(3) (d) of the Constitution.c.The petition is therefore incompetent and misconceived in law and ought to be struck out with costs. 5.The objections by the 2nd and 3rd respondents: 1.The petition and application dated 11 May 2026 are incurably defective, a sham and incapable of sustaining judicial consideration. 2.The petition and the application are premised entirely upon the Supporting Affidavit of Stephen Mutoro together with the annexures thereto, which constitute the sole evidential foundation upon which the reliefs sought are anchored. 3.Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 expressly provides that where a party wishes to rely on any document, such document shall be annexed to the Supporting Affidavit or petition. Therefore, any annexures intended to support the petition must constitute competent and admissible affidavit evidence. 4.The said affidavit was commissioned in contravention of the mandatory provisions of Rule 9 of the Oaths and Statutory Declarations Rules, made pursuant to the Oaths and Statutory Declarations Act, in that the annexures thereto were neither securely sealed under the seal of the Commissioner for Oaths nor marked with serial letters of identification as expressly required. 5.Rule 9 of the Oaths and Statutory Declarations Rules is couched in mandatory terms and provides as follows:All exhibits and affidavits shall be securely sealed under the seal of the Commissioner and shall be marked with serial letters of identification. 6.The use of the term “shall” under Rule 9 denotes a mandatory statutory obligation, leaving no discretion as to compliance with the requirements relating to sealing and marking of annexures to affidavits. 7.That non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules is fatal to the validity of an affidavit. Consequently, the court should expunge the affidavit, together with its annexures, from the record, as held in Kenya National Union of Nurses v Kiambu County Public Service & 5 others [2019] eKLR. 8.The failure to securely seal and serialise annexures to an affidavit is not a mere procedural technicality curable under Article 159(2) (d) of the Constitution, but a substantive defect that renders the affidavit incompetent. See Mabel Imbuga v Jomo Kenyatta University of Agriculture and Technology & another [2021] eKLR. 9.Upon expunging the Supporting Affidavit together with the defective annexures thereto, the petition and Notice of Motion are left without any competent evidence substratum and are consequently unsustainable in law. 10.In light of the foregoing, the petition dated 11 May 2026 and the Notice of Motion of even date are incomplete, an abuse of court process and ought to be struck out with costs. 6.The 1st and 4th respondents submitted that under Rule 9 of the Oaths and Statutory Declarations Rules, all exhibits should be secured under the seal of the Commissioner and should be marked for identification. This Rule is mandatory and does not give discretion to the party when filing exhibits. In Kenya National Union of Nurses v Kiambu County Public Service Board & 5 others [2019] eKLR, the court considered the effect of failing to comply with Rule 9 and held that the use of the word “shall” denotes there is no discretion. The offending affidavit used by the petitioner in support of the application and petition is not compliant with Rule 9 and should be struck off. The petition is left bare as held in Mabel Imbuga v Jomo Kenyatta University of Agriculture and Technology [2021] eKLR. 7.On jurisdiction, the respondents submitted that the petitioner is not in an employment relationship as contemplated under Article 162(2) (a) of the Constitution or Section 12 of the Employment and Labour Relations Court Act. Without such a foundation, the fling of the petition herein denies the court the requisite jurisdiction. In Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others Civil Appeal E107 & E116 of 2024 (consolidated) [2025] KECA, the court held that in questioning the legality of pre-employment procedures and processes undertaken by a prospective employer, such a matter falls within the jurisdiction of the High Court and not the court. 8.The petitioner challenges the appointment of the interested party. There is no employment relationship; hence, the court lacks jurisdiction to hear and determine the matter, and the matter should be struck out. 9.The 2nd and 3rd respondents submitted and supported the objections of the 1st and 4th respondents that under Rule 9 of the Oaths and Statutory Declaration Rules, all affidavits filed in support of the petition must be sealed by the Commissioner. Such a requirement is mandatory. It cannot be cured through the application of Article 159 of the Constitution. The law regulates the filing of affidavits; hence, the petitioner's failure to comply with the Rules renders the petition invalid and should be struck out. 10.The respondents submitted that the court lacks jurisdiction to hear and determine the petition. 11.In Public Service Commission & 4 others v Cheruiyot & 20 others Civil Appeal 119 & 139 of 2017 (consolidated) [2022] KECA, the court held that the Employment and Labour Relations Court has no jurisdiction to hear a petition premised on the breach of a party’s fundamental rights under the Constitution. The alleged constitutional breaches must be ancillary and incidental to the matters contemplated under section 12 of the Employment and Labour Relations Court Act. Any proceedings therefrom, without jurisdiction, are null and void. 12.The petition is premised on a challenge to the intended recruitment and appointment of the 3rd respondent's managing director and chief executive officer. The petitioner therefore challenges the application of section 22(3) of the Government Owned Enterprises Act with regard to the prescribed qualifications for the appointment of such an officer. There is therefore no employment relationship between the parties. This denies the court jurisdiction. The preliminary objections by the respondent are with merit and should be allowed, and the petition struck out. 13.The petitioner submitted that the court has the requisite jurisdiction to hear and determine the petition, as it challenges the interpretation of section 22(3) of the Government Owned Enterprises Act, which relates to the employment and qualifications of the interested party. The substantive issues in dispute are the eligibility of the interested party; the criteria governing eligibility for appointment; access to public employment; fair competition in recruitment; constitutional integrity in public appointment; and the legality of the recruitment process. These are matters that fall within the application of article 162(2) (a) of the constitution and section 12 of the Employment and Labour Relations Act. In United States International University (USIU) v Attorney General & others (interested party) [2012] eKLR, the court recognised that employment disputes, including recruitment and appointment to public office, are, under Article 165(5) of the Constitution, removed from the jurisdiction of the High Court. 14.The objections thus made by the respondent with regard to jurisdiction are without merit and should be dismissed. The petitioner submitted that the alleged defective affidavit is not fatal and such procedural lapses can be cured. The petition raises substantive issues concerning public recruitment, the legality of administrative action, access to public office and constitutional governance. The dispute is therefore not solely founded on the annexures to the affidavit. The petition can be adjudicated independently of the alleged defects. 15.Article 159 of the Constitution obligates courts to administer justice without undue regard to procedural technicalities. In Likowa v Aluochier & 2 others [2025] eKLR, the court held that the common practice under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules is to file an affidavit in support of every petition. However, the procedure is not mandatory. 16.The petition is filed under the provisions of articles 22 and 258 of the Constitution, hence giving the petitioner proper standing before the court. The objections are without merit and should be dismissed to allow the petition to be heard. Determination 17.The respondents raise preliminary objections on two fundamental issues;i.Whether the non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules is fatal and hence the standing of the petitioner.ii.Whether the court lacks jurisdiction on the basis that there is no employment relationship between the parties. 18.Indeed, Rue 9 of the Oaths and Statutory Declarations Rules, which is based on the Oaths and Statutory Declarations Act, is couched in mandatory terms. An affidavit sworn in support of an application and a petition should be commissioned, and, where there are annexures and exhibits, they should be sealed and numbered or coded for identification. 19.The petitioner does not deny that the affidavit in support of the application and petition, both dated 11 May 2026, are not sealed, and that the annexed exhibits are not marked with identifiers. The petitioner asserts that such lapse can be cured under Article 159 of the Constitution, as this is a technicality. The substantive issues are well articulated in the affidavit. 20.Indeed, the filing of a constitutional petition, as done herein by the petitioner, is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. A petition regulated under such Rules must be secured through a Supporting Affidavit. 21.The nature of the affidavit to be filed is in terms of the Oaths and Statutory Declarations Act and the Rules thereto. Therefore, under Rule 9 of the Oaths and Statutory Declarations Rules, the affidavit must comply with the requirements thereto. Otherwise, the probative value of such a document is lost. Such cannot be cured through the application of. Article 159 of the Constitution, where the affidavit to be applied is already defined under the law. 22.The affidavit by the petitioner in support of the petition and notice of motion dated 11 May 2026 is invalid. The petition and the notice of motion lacked a foundation and are thus struck out. 23.While the matter was pending determination, new developments and a judgment were delivered in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). The Supreme Court has defined the mandate of the court, but excludes persons who are human rights activists, patriotic citizens of Kenya, law-abiding citizens, public-spirited individuals, and human rights defenders. Under paragraph 73, the Supreme Court held:The 1st to 7th respondents described themselves in the High Court Petition as human rights activist, patriotic citizens of Kenya, law-abiding citizens, public- spirited individuals, and human rights defenders. They did not petition the High Court on behalf of any applicant for the positions of CEO or MD of the four parastatals. We reiterate, they were acting in the public interest. 24.The rationale is that the petitioners before the High Court did not plead on behalf of those who applied for the challenged positions of CEOs or managing directors and were not successful to fall within the jurisdiction of the court as employees, employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment. Hence, without such defined persons or entities:The 1st to 7th respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalization and discrimination of women and people with disability. Nowhere do they plead on behalf of those who applied for CEO or MD positions and were not successful. The respondents moved the High Court for the vindication of the alleged breach of specified constitutional rights. The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of the Constitution. 25.The matter reverted back to the High Court. 26.Whereas the court has exclusive jurisdiction over employment and labour relations disputes pursuant to article 162(2) (a) and 165(5) (b) of the Constitution, and the petition herein relates to the challenged appointment to the office of the CEO of a government-owned enterprise, the 3rd respondent, the petitioner is defined as a registered public interest consumer rights and accountability organization. The petitioner thus has no defined employee, employer, trade union official, employers’ federation official, prospective employee, person seeking employment, applicant for employment, or person aggrieved by a decision of the Director of Employment in relation to any respondent herein. 27.In the past, I have expressed a contrary view from the one postulated by the Supreme Court on the subject of jurisdiction, on the appreciation that the core issue(s) addressed by the petitioner go to the root of an employment relationship and under article 22 and 258 of the Constitution, the entity of the petitioner can litigate and ventilate such matters before the court particularly in terms of article 165(5)(b) of the Constitution. The prominent issue being employment. However, I am bound by the Supreme Court's latest position on the matter in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). 28.The upshot is that the instant petition leaves the court without jurisdiction. The respondents' objections, although premised on different grounds, are thus addressed. The petition is struck out. Taking into account the recent developments in law, each party shall bear its costs. DELIVERED IN OPEN COURT THIS 16TH DAY OF JULY 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi……………………………………………… and …………………………………..………ELRC NAIROBI RULING PETITION NO. E153 OF 2026 4