https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1400

Kiplimo v Chairperson, Kenya Roads Board & 11 others (Employment and Labour Relations Petition E039 of 2026) [2026] KEELRC 1400 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1400 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E039 of 2026 JW Keli, J May 15, 2026 IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 35, 47, 73, 159, 162(2)(a), 232 and 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: SECTIONS 5, 6 AND 7 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND N THE MATTER OF: SECTION 80 OF THE PUBLIC SERVICE COMMISSION ACT, 2017 AND IN THE MATTER OF: THE RECRUITMENT AND SHORTLISTING PROCESS FOR THE POSITION OF DIRECTOR GENERAL (CHIEF EXECUTIVE OFFICER) OF THE KENYA ROADS BOARD Between Emanuel Kiplimo Applicant and The Chairperson, Kenya Roads Board 1st Respondent Kenya Roads Board 2nd Respondent Judith Chelang'at Kerich 3rd Respondent CPA Abishack Jepkoech Boiywo 4th Respondent Tom Nyamora Omai 5th Respondent Eng Dr Ali Ibrahim Hassan 6th Respondent Peter Mutui 7th Respondent Mohamed Osman Adan 8th Respondent Eng. Wilson Kipsang Kosgey 9th Respondent Paul Kosgei Kiplagat Kibet 10th Respondent Joe Njoroge Mutugu 11th Respondent Eng. Wilfred Reinhard Oginga 12th Respondent Ruling 1.The Petitioner, Emmanuel Kiplimo stated he did not assert a private employment claim. That his standing arises from the constitutional right and duty of every person to defend the constitution and seek judicial intervention where the public power is exercised in a manner that is inconsistent with constitutional and statutory standards. He filed a petition dated 3rd February2026 and sought for the following orders:a)A declaration that the recruitment and shortlisting process for the position of Director General of the Kenya Roads Board, as designed and implemented by the Respondents, is inconsistent with Articles 10, 27, 35, 47, 73 and 232 of the Constitution and is therefore unconstitutional, unlawful and invalid.b)A declaration that recruitment into a senior office within as statutory body must demonstrate compliance with mandatory public service eligibility requirements and structured vetting at the screening stages.c)An order quashing and nullifying the shortlist of candidates published by the 2nd Respondent for the position of Director General of the Kenya Roads Board.d)An order restraining the Respondents from proceeding with interviews or any further steps in the impugned recruitment process for the position of Director General of the Kenya Roads Board.e)An order of Mandamus directing the 2nd Respondent to undertake a fresh, lawful, transparent and constitutionally compliant recruitment process for the position of Director General of the Kenya Roads Board, in strict conformity with Articles 10, 27, 35, 47, 73 and 232 of the Constitution and the governing statutory framework on public service eligibility.f)An order directing that any subsequent recruitment process for the said position be conducted in a manner that demonstrably reflects compliance with constitutional inclusion principles and mandatory statutory eligibility requirements.g)Costs of this petitionh)Any other or further relief that this Honourable Court may deem just and appropriate for the enforcement of the Constitution. 2.The petitioner swore an affidavit of even date of 3rd February 2026 where he annexed a copy of the advertisement for the position of Director General of the 2nd respondent, (EK – 1), Notice of shortlisted candidates (EK – 2) and Government circular on retirement age of 60 years (EK-3). 3.In response, the 1st and 2nd respondents, represented by office of the Attorney General, filed Notice of Preliminary Objection raising the following grounds: -i.That this Honorable Court lacks the requisite subject matter jurisdiction to entertain the matter in light of the provisions of Article 162 of the Constitution of Kenya, 2010 as read with Section 12 of the Employment and Labour Relations Court Act.ii.That the substratum of the Application and Petition do not disclose an employer-employee relationship between the Shortlisted candidates as outlined in the Petition and the 2nd Respondent.iii.That no employer employee relationship had crystalized at recruitment stage hence this honourable court lacks the requisite jurisdiction to hear and determine the matter as was the finding in the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others [2025] KECA 937 (KLR)iv.That in light of the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others [2025] KECA 937 (KLR) court opined that, "Clearly, bearing in mind the above definitions and the provisions of Section 12 of the ELRC Act which requires the existence of an employer employee relationship, it cannot be said that a person challenging the constitutional validity of a recruitment process like in this case falls within the definition of an employee..."v.That Honourable Court is thus precluded from exercising jurisdiction over this matter.vi.That in light of the Court of Appeal decision stated herein, the High Court of Kenya holds the requisite jurisdiction to hear and determine the suit herein. 4.The court directed that the preliminary objection be first canvassed through a written submission. At the outset, it is important to note that the petitioner had not stated that he had applied for the position, and that his role was in the public interest, alleging a contravention of the Constitution in the recruitment process. 5.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;’ This jurisdiction is qualified to exclude the jurisdiction under 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. 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) extensively stated inter alia in setting aside decision of the Court of Appeal-‘“[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. 6.Does the court have jurisdiction in a recruitment process challenged by a private citizen asserting public interest, and without a personal employment dispute? The respondents 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 petitioner is not in employment relations with the respondent. He was not even an applicant for the impugned position. Had the Petitioner for the position applied 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 cited above to hold that I have no jurisdiction in the matter, as no apparent employer-employee relationship was disclosed in the dispute, as the petitioner had not applied for the job and was not an employee. Whether the respondents violated constitutional principles in the recruitment process falls under Article 165 of the Constitution, the petitioner being a stranger to the process and coming in purely in the public interest to protect the Constitution. 7.The petition and an application therein are struck out for want of jurisdiction. This is public interest matter. No order as to costs. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELIJUDGE.In the Presence of:Court Assistant: OtienoRespondents: AkunoPetitioner: Kuria Ndegwa3rd Respondent : Bulowa holding brief Khaemba.