https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2189

REPUBLIC OF KENYA IN THE EMPLOYMENT AND RELATIONS COURT AT NAIROBI PETITION NO. E218 OF 2026 ADAN MOHAMMED IBRAHIM ……………….…………….. 1ST PETITIONER ADAN ABDIRAHMAN HASSAN …………..…….………….. 2ND PETITIONER VERSUS DEPUTY COUNTY COMMISSIONER, KHALALIO SUB COUNTY ……………………………….…. 1ST RESPONDENT CABINET SECRETARY, MINISTRY OF INTERIOR & NATIONAL ADMINSTRATION .............. 2ND RESPONDENT AND PUBLIC SERVICE COMMISSION ………………. 1ST INTERESTED PARTY ETHICS AND ANTI CORRUPTION COMMISSION ………………………………….……. 2ND INTERESTED PARTY RULING 1. What is before this Court for determination is the 1st Interested Party’s Notice of Preliminary Objection seeking dismissal of the Petitioner’s Notice of Motion Application and Petition, both dated 26th June 2026 on grounds that: 2. That this Honourable Court lacks jurisdiction to hear and determine the matter in light of the provisions of Articles 165(3) of the Constitution of Kenya. 3. That by dint of the Supreme Court decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others (Petition E030 & E033 of 2025 (consolidated) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgement), this Honourable Court lacks jurisdiction to hear and determine this matter as the Petitioners/Applicants are not parties envisaged under Section 12 of the Employment and Labour Relations Court Act, the Employment Act, the Labour Relations Act and Labour Institutions Act. 4. That the substratum of the petition revolves around an ongoing recruitment process which the Petitioners allege threatens to violate their constitutional rights and those of the Leysan Community. 5. That the Petitioners have not filed the instant Petition and application on behalf of any applicants for the advertised position but have instead filed on their own behalf and in a representative capacity of the Laysan Community. 6. That the Petition therefore does not concern an employment and labour relations dispute within the meaning of Article 162(2) (a) and Section 12 of the Employment and Labour Relations Court Act, over which this Honourable Court has jurisdiction. 7. That the Notice of Motion and the Petition amount to an abuse of the court process and should thus be dismissed and/or struck out with costs. 8. The gist of the impugned Petition is that the Respondent advertised a vacancy for the position of Chief Grade II for Kamor, Central and Garbaqoley Locations within Mandera East Sub-County, Mandera County. That the applications for Garbaqoley Location, Khalalio Division closed on 11th July 2026. That the elders of the Mandera East Constituency have raised concerns that there have been interferences by a local politician, who intended to impose a candidate from Shirmoge Community; thereby undermining the integrity of the process. That the allegedly publicly declared preferred candidate is the son of the retired chief. The said declaration has been termed as based on malice and discrimination against the qualified members of the community. 9. Relatedly, that the recruitment process from advertisement, to re-advertisement and the recruitment was being conducted in an opaque manner, devoid of transparency and accountability and in total disregard of the values under Article 10 of the Constitution. 10. The Respondents are accused of contravening Article 232 by failure to guarantee a process free from political interference. That the Respondents’ actions, if not restrained will result in bias and ineffective leadership undermining fair administrative action. That the residents of the community will suffer irreparable harm that cannot be compensated with damages if the procedure is allowed to proceed. Submissions 1. In their submission, the Respondents raised the following issues for determination; (i) whether the objection meets the threshold for a point of law (ii) whether this court has the requisite jurisdiction to hear and determine this matter; 2. On the 1st issue, reliance was placed on the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, on what constitutes a Preliminary Objection, to submit that the instant Preliminary Objection raises pure question of law. 3. In challenging this Court’s jurisdiction to hear and determining the suit, reliance was placed on the recent Supreme Court’s decision in Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment), urging that by virtue of the Petitioners being only residents of the Garbaqoley Location and not applicants for the position of Chief Grade II, they lacked the *locus standi* to institute the suit in this Honourable Court and should instead approach the High Court as public litigants. Counsel added that the court had no discretion to entertain this matter and without Jurisdiction, a court must down its tools. The Court was urged to dismiss the same with costs to the Respondents. Analysis 1. The singular issue for determination is whether this Court has the jurisdiction to hear and determine the instant Petition and accompanying application. 2. The Court’s attention has been directed to the recent decision of the Supreme Court in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). 3. In its judgement, the Court held as follows: *72. As we conclude on this aspect of the appeal, we restate our determination at the beginning of this judgment that the appeal has been brought as of right under Article 163(4)(a) of the Constitution. The question being, whether the Court of Appeal properly interpreted and applied the relevant provisions of the Constitution in arriving at the determination in the impugned judgment; namely whether the 1st to 7th respondents qualified as parties in terms of Section 12 of the ELRC Act, or the other written laws. Did they petition the High 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? No. Not in any of those capacities.* *73.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 of the applicants to the positions of CEO or MD of the four parastatals. We reiterate, they were acting in the public interest.* 1. The issue on jurisdiction was well settled by the Court in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) where the Court held as follows: *“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”* 1. Having perused the Petition and the accompanying Application, there is no indication that the same has been brought on behalf of any of the Applicants for the position. As such, this Court downs its tools at this juncture. 2. The upshot of the foregoing is that the suit is struck out. 3. This being a public interest litigation, and the issue on jurisdiction having been resolved following the filing of the Petition, there shall be no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28th 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