https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11432

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E858 OF 2025** **FORUM FOR GOOD GOVERNANCE AND HUMAN RIGHTS………………..PETITIONER** **AND** **THE REGISTRAR,** **EMPLOYMENT AND LABOUR RELATIONS COURT………………….1ST RESPONDENT** **THE HON. CHIEF JUSTICE………………………………………...2ND RESPONDENT** **THE CABINET SECRETARY,** **LABOUR AND SOCIAL PROTECTION………………….…………....3RD RESPONDENT** **THE REGISTRAR OF TRADE UNION………………………………..4TH RESPONDENT** **THE HON. ATTORNEY GENERAL…………………………………..5TH RESPONDENT** **RULING** **(On the 1st and 2nd Respondents' Notice of Preliminary Objection dated 4th February 2026)** 1. By a Petition and a Notice of Motion, both dated 24th December 2025, the Petitioner seeks to challenge the constitutionality of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, issued by the Chief Justice under Gazette Notice No. 18142 of 2025. 2. The 1st and 2nd Respondents filed a replying affidavit, deposed to by Hon. Aziza Ajwang, the Deputy Registrar of the Employment and Labour Relations Court, dated **4th February 2026**, and a Notice of Preliminary Objection dated the same day, contending that the Court lacks jurisdiction to entertain the Petition on the ground that the subject matter of the Petition is a preserve of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution. 3. The Petitioner opposes the Preliminary Objection on two grounds. First, it is incompetent because it was filed alongside a Replying Affidavit that contests the facts of the case. Second, even on its merits, this Court, not the Employment and Labour Relations Court, is the proper forum to entertain a constitutional challenge to subsidiary legislation of this nature. 4. The 1st and 2nd Respondents filed submissions dated 28th April 2026. On its part, the Petitioner filed submissions dated 11th May 2026 vide which it opposed the Preliminary Objection. 5. The 1st and 2nd Respondents' submissions are that the Preliminary Objection rests on a single question of whether the Petition falls within this Court's jurisdiction. They anchor their argument on the Court of Appeal's decision in **Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, for the proposition that a court without jurisdiction must down its tools, and on **Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR)** for the proposition that jurisdiction flows only from the Constitution or legislation or both. A court cannot arrogate to itself jurisdiction exceeding that conferred upon it by law. 6. The Respondents submitted that jurisdiction conferred on the High Court under Article 165(3) of the Constitution of Kenya, 2010 is unlimited original jurisdiction in civil and criminal matters, enforcement of the human rights and fundamental freedoms in the Bill of Rights, appeals from subordinate courts and certain tribunals, constitutional interpretation, conflict of laws under Article 191, and any other jurisdiction conferred upon it by legislation. 7. They further submitted that Article 165(5)(b) of the Constitution of Kenya, 2010, is particularly relevant to the issue before the court, as it excludes from the High Court's jurisdiction matters falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution of Kenya, 2010. They also relied on the decision of the Court in **Karisa Chengo & 2 Others v Republic [2015] eKLR** to support the proposition that the High Court's jurisdiction is correspondingly limited and may not intrude on matters reserved to the Employment and Labour Relations Court, just as the Employment and Labour Relations Court may not intrude on matters reserved to the High Court. 8. The 1st and 2nd Respondents’ counsel referred the Court to section 12(1) of the Employment and Labour Relations Court Act, 2014, which confers exclusive jurisdiction on the Employment and Labour Relations Court over a list of disputes, including, at section 12(1)(i), “disputes concerning the registration and election of trade union officials.” On this basis, they submitted that, because the impugned Practice Directions were made to govern the determination of disputes concerning the election of trade union officials, a challenge to those Practice Directions likewise falls within the Employment and Labour Relations Court's exclusive jurisdiction under Article 162 (2) of the Constitution of Kenya, 2010, and section 12 of the Employment and Labour Relations Court Act, 2014. 9. On the constitutional aspect of the Petition, the 1st and 2nd Respondents rely on **Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR** and **USIU v Attorney General [2012] eKLR** (Majanja J) to support the proposition that the Employment and Labour Relations Court, being a court of equal status to the High Court, has full competence to interpret and apply the Constitution, including to enforce Article 41 of the Constitution of Kenya, 2010, and other fundamental rights, ancillary or incidental to employment and labour relations, in any matter otherwise within its mandate under the section 12 of the Employment and Labour Relations Act. 10. They further rely on the decision of Stella Rutto J in **Magare Gikenyi J Benjamin v Ministry of Labour & Another; Federation of Kenyan Employers (FKE) & 4 Others (Interested Party) [2022] eKLR**, where the court applied a purposive interpretation of the Employment and Labour Relations Court Act's jurisdiction, noting that the words “…and for connected purposes” in the Act's preamble supported a broad rather than a narrow view of what constitutes employment and labour relations matters. 11. On this basis, the 1st and 2nd Respondents concluded that, although the Petition is framed in constitutional language, the constitutional issues it raises arise squarely in the context of an employment and labour relations dispute, and that the Petition therefore falls within the exclusive jurisdiction of the Employment and Labour Relations Court, not the High Court. They pray that the Petition and Application be dismissed with costs. 12. The Petitioner’s submissions, on the other hand, relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Oraro v Mbaja [2005] KEHC 3182 (KLR)** to support the settled position that a preliminary objection must raise a pure point of law, on the assumption that the opposing party's pleaded facts are correct, and cannot be raised where facts are in dispute. 13. The Petitioner advanced a specific procedural argument that a preliminary objection is, in substance, a form of defence, indistinguishable in that respect from a replying affidavit; that a party is entitled in law to file only one form of defence to a suit, absent leave of court; and that a party who has filed a replying affidavit contesting the pleaded facts is thereby precluded, on grounds of “approbation and reprobation,” from also raising a preliminary objection. 14. Applying this to the facts, the Petitioner pointed out that the 1st and 2nd Respondents filed a Replying Affidavit on the same date as the Preliminary Objection, contesting facts in both the Notice of Motion and the Petition. The Petitioner submitted that this tactic converted what ought to have been a pure point of law into a mixed question of law and fact, rendering the Preliminary Objection incompetent and, on this ground alone, liable to be struck out or dismissed. 15. On jurisdiction, the Petitioner first raised a related procedural point, to the effect that a party challenging a court's jurisdiction must strictly confine its pleadings to that issue, since engaging with the merits while disputing the court's authority to hear the case risks a finding that the jurisdictional challenge has been waived or abandoned by voluntary submission to the Court's jurisdiction. 16. On the substantive question, the Petitioner submits that jurisdiction is a pure question of law within the meaning of Mukisa Biscuit decision. It relies on the Supreme Court's decision in **Charles Muturi & 6 Others v Standard Group & 4 Others, SC Petition No. 13 (E015 of 2022)**, to support the proposition that jurisdiction is conferred only by the Constitution or statute, that a court cannot acquire jurisdiction by interpreting the facts of a case or of its own motion, and that no party can arrogate jurisdiction to a court. 17. The Petitioner submitted that the 1st and 2nd Respondents have not identified any constitutional or statutory provision conferring jurisdiction on the Employment and Labour Relations Court over this dispute. It argued that the Employment and Labour Relations Court is not expressly established by the Constitution; rather, Article 162(2)(a) merely empowers Parliament to establish it. Accordingly, it was urged, the Employment and Labour Relations Court is properly regarded as a creature of Parliament, with its jurisdiction found exclusively in sections 12(1) and (2) of the Employment and Labour Relations Court Act, 2014. 18. The Petitioner further submitted that the impugned Practice Directions were issued by the Chief Justice under the Judicature Act and the Judicial Service Act, not under any power conferred by the Employment and Labour Relations Court Act. Accordingly, this Court, as the court with unlimited original civil jurisdiction, is properly seized of the jurisdiction to hear and determine a challenge to the exercise of those general powers. 19. The Petitioner also raised an institutional-propriety objection, arguing that the Employment and Labour Relations Court cannot be a proper forum because the Registrar of the Court is a respondent in the matter. Allowing this would offend the principle of nemo judex in causa sua; referring the matter to the Employment and Labour Relations Court would occasion a real conflict of interest and violate the right to a fair hearing under Article 50(1) of the Constitution, rendering any such proceedings a nullity. 20. The Petitioner further submitted that the dispute is, in substance, constitutional rather than employment-based because it seeks to challenge the legality and constitutionality of the legal framework; such disputes are matters squarely for the High Court's exclusive constitutional mandate. 21. I have considered the Petition, the Responses thereto, the Notice of Preliminary Objection, the rival written submissions, and the authorities cited by both parties. In my view, the following issues fall to be determined by this Court: 22. **Whether the Notice of Preliminary Objection dated 4th February 2026 is competent; and** 23. **Whether this Court has jurisdiction to hear and determine the Petition.** **Analysis of the Applicable Law** **Whether the Notice of Preliminary Objection dated 4th February 2026 is competent** 1. The law on what constitutes a valid preliminary objection is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, the Court of Appeal held that a preliminary objection is a pure point of law, argued on the assumption that all the facts pleaded by the other side are correct, and that, if upheld, disposes of the suit. Where the objection requires the ascertainment of facts, or where facts are contested, it is not a proper preliminary objection. 2. The Petitioner’s Position is that, having filed a Replying Affidavit contesting the facts in issue and a Preliminary Objection, the 1st and 2nd Respondents have raised an issue of law and fact and are guilty of approbation and reprobation. By filing a replying affidavit to the Petition, the 1st and 2nd Respondents have forfeited the right to raise the objection. 3. The Court is not persuaded by the 1st and 2nd Respondents' position that this renders the Preliminary Objection incompetent, for the reasons outlined below. 4. First, the objection raised is that the subject matter of the dispute falls within the exclusive jurisdictional preserve of the Employment and Labour Relations Court under Article 162(2)(a) as read with Article 165(5)(b) of the Constitution of Kenya, 2010. This is self-evidently a question of law. That is precisely the kind of pure question of law contemplated in the decision of **Mukisa Biscuit case (supra)**. 1. Second, jurisdiction is not a defence on the merits of any issue brought before any Court for determination; rather, it is foundational. As held in **Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, a court without jurisdiction must down its tools. Because a challenge to jurisdiction goes to the very competence of the Court to adjudicate at all, it may properly be raised as a threshold issue for determination *in limine*, and courts routinely direct that it be canvassed first, irrespective of whatever else is on the record. 2. The position taken by the Petitioner, that the filing of a Replying Affidavit in response to the Petition by the 1st and 2nd Respondents amounts to an admission of the Court's jurisdiction, does not, by itself, make the outright legal question of jurisdiction an issue of fact. 3. I do not accept the Petitioner's proposition that a Respondent may file only one “form of defence”. In the course of proceedings, Parties often file a replying affidavit addressing the merits and factual issues raised in a pleading, and raise a jurisdictional objection in the alternative. In my view, this is prudent drafting, not an act of “approbation and reprobation.” Nor does it amount to a submission to the Court's jurisdiction by conduct. The Respondents did not argue the merits before independently raising the objection to jurisdiction; both were filed simultaneously. 4. Accordingly, I find that the Notice of Preliminary Objection dated 4th February 2026 is competent and properly before the Court for determination. **Whether this Court has jurisdiction to hear and determine the Petition.** 1. Turning to the substance of the objection, Article 165(3) of the Constitution of Kenya, 2010 confers upon the High Court unlimited original jurisdiction in civil and criminal matters, enforcement of the human rights and fundamental freedoms in the Bill of Rights, and jurisdiction to determine whether any law is inconsistent with the Constitution. Its jurisdiction is, however, expressly stated to be “subject to clause (5).” Article 165(5)(b) of the Constitution of Kenya, 2010, in turn excludes from the High Court's jurisdiction matters falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution of Kenya, 2010, which include the Employment and Labour Relations Court. 2. Section 12(1) of the Employment and Labour Relations Court Act, 2014 confers exclusive original jurisdiction on the Employment and Labour Relations Court over disputes relating to employment and labour relations, including, under section 12(1)(i), disputes concerning the registration and election of trade union officials. 1. The Court of Appeal's decision in **Karisa Chengo & 2 Others v Republic [2015] eKLR** is instructive. The High Court's jurisdiction is limited on two fronts: it may not exercise jurisdiction over matters falling within the jurisdiction of the courts contemplated under Article 162(2) of the Constitution of Kenya, 2010. Secondly, those specialized courts cannot deal with matters reserved for the High Court. For the most part, the jurisdiction of the High Court and the equal status courts are, in principle, mutually exclusive rather than concurrent. 2. The Respondents relied on this exclusivity, together with the decisions of the court in **USIU v Attorney General [2012] eKLR** and **Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR**, for the proposition that the Employment and Labour Relations Court, being a court of equal status to the High Court, has full competence to interpret and apply the Constitution, including Article 41 and other rights, where the question arises in any issue otherwise within section 12 of the Employment and Labour Relations Court Act, and that a party may not evade that exclusive jurisdiction merely by dressing up an employment/trade-union dispute in constitutional language. 3. That principle is sound, but it is important to note its precise limits and clarification as outlined in the authorities relied on by the 1st and 2nd Respondents. The Employment and Labour Relations Court's constitutional jurisdiction is not original or unlimited like that of the High Court. It is **ancillary and incidental**, arising only “in the context of disputes on employment and labour relations” properly before it. 4. The jurisdictional question, therefore, cannot be resolved simply by asking whether the subject matter *touches on* trade union elections in some general sense; it requires the Court to examine what is actually pleaded and sought. 5. I have read the Petition. The Petition does not seek to resolve a trade union election dispute between an employer and employee, a trade union and its member, or any of the other categories enumerated in section 12(2) of the Employment and Labour Relations Court Act. It seeks to challenge the constitutionality of the Practice Directions. This is a constitutional question that is not incidental to the disputes contemplated by section 12(2) of the Employment and Labour Relations Court Act. 6. The impugned Practice Directions, the subject of the Petition, were made under Article 22(3)(4), Article 159(2), Article 161(2)(a), Article 162(2)(a) and Article 165(5)(b) of the Constitution of Kenya, 2010, and under section 10 of the Judicature Act and sections 5(1)(2) of the Judicial Service Act, 2011, not the Employment and Labour Relations Court Act. Whether the Chief Justice validly exercised those general constitutional and statutory powers is a question about the scope of judicial administrative authority under the Constitution, the Judicature Act and the Judicial Service Act, and not one that falls under Section 12 of the Employment and Labour Relations Court Act. 7. The Registrar of the Employment and Labour Relations Court is joined as a party to the Petition in relation to the making or administration of the impugned Practice Directions. It is a basic tenet of the rule of law, encapsulated in the maxim *nemo judex in causa sua*, that a court ought not to be called upon to adjudicate the validity of an instrument in the making or defence of which its own Registrar is an active litigant. Referring the matter to the Employment and Labour Relations Court in these circumstances would raise a real and substantial question under Article 50(1) of the Constitution of Kenya, 2010, as to the fairness of the trial and the resulting determination. 8. The Court of Appeal in Governor, **County Government of Kakamega & 4 others v Omweno & 12 others [2025] KECA 190 (KLR)** set aside a judgment of the Employment and Labour Relations Court that purported to determine the constitutionality of the removal from office of the Chairperson and members of a County Public Service Board. The Court of Appeal held that matters concerning the appointment and removal of constitutional office-holders, even those whose positions carry an evident employment dimension, are constitutional questions properly ventilated before the High Court and do not fall within the meaning of a dispute relating to employment and labour relations. It further held that the Employment and Labour Relations Court's jurisdiction to interpret and apply the Constitution, while real, is not original or unlimited, but confined to matters arising in the context of a dispute properly within section 12 of the Employment and Labour Relations Court Act. 9. The decision of the court in **Kinyili & another v Government of Makueni County; Ethics and Anti-Corruption [2025] KEELRC 750 (KLR)** declined jurisdiction over an analogous constitutional question. It held that questions relating to the constitutional constraints and procedures governing the removal of public office holders did not fall within the meaning of a dispute relating to employment and labour relations. This is evidence that the Employment and Labour Relations Court itself recognises the limits of its own constitutional jurisdiction along the lines identified above, lending further comfort that the characterization adopted in this ruling is not merely a High Court view self-servingly expanding its own remit. 10. The Supreme Court decision in [**Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/3/eng%402024-02-21) held that the Employment and Labour Relations Court is not precluded from determining the constitutional validity of a statute where the challenge is integral to a dispute properly before it, but confirmed that the High Court retains residual jurisdiction to determine whether any law is inconsistent with the Constitution. Thereby confirming that the High Court's constitutional jurisdiction over the validity of legal instruments is residual rather than wholly displaced by the ELRC's specialized mandate. 11. For these reasons, the Court finds and holds that the Petition raises a constitutional question concerning the validity of subsidiary legislation under Article 165(3)(d)(i) of the Constitution of Kenya, 2010 falling within the unlimited original jurisdiction of the High Court, and not within the exclusive jurisdiction reserved to the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution of Kenya, 2010 and section 12 of the Employment and Labour Relations Court Act. **Final Orders** 1. The upshot of the foregoing is that I find and hold that the Preliminary Objection has no merit. The same is for dismissal. Consequently, the orders that commend themselves to me are: 1. The Preliminary Objection dated **4th February 2026** is hereby dismissed; and 2. Each party shall bear its own costs. 44. It is so ordered. **Dated and signed at Nairobi on this 23rd day of July 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Mr **Ochieng,** forthe **Petitioner** **No appearance** for the **1st and 2nd Respondents** **Ms Taib,** holding brief for **Ms Kiramana** for the **3rd, 4th and 5th Respondents; and** Ms **Neema Lwambia – Court Assistant**.