https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2271

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E010 OF 2026** **JOSEPH KARURI PETITIONER** **VERSUS** **PUBLIC SERVICE COMMISSION 1ST RESPONDENT** **KENYATTA UNIVERSITY 2ND RESPONDENT** **PROF. PAUL WAINAINA 3RD RESPONDENT** **AND** **KENYATTA UNIVERSITY STAFF UNION (KUSU) INTERESTED PARTY** **JUDGMENT** On 18 June 2026, the parties attended court, and directions were issued to address the petition together with the objections filed. Upon retreat and study and analysis of the record, considering the nature of the objections herein, the court will address the objections dated 8 June 2026 by the interested party. The petitioner filed this petition dated 15 January 2026. The interested party, KUSU, filed a Notice of Preliminary Objections dated 5 June 2026 on the grounds: 1. *The petition raises constitutional and legal issues outside the remit of an employment relationship, which are the preserve of the High Court of Kenya pursuant to Article 165(3) (d) (ii) of the Constitution.* 2. *The court does not have the requisite constitutional jurisdiction to adjudicate on the suit for want of an employee-employer relationship on the premise that constitutional issues must arise from an employer-employee dispute for the Employment and Labour Relations Court to assume jurisdiction pursuant to the Court of Appeal decision in* ***National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others [2023] KECA****; the Court of Appeal in* ***Clerk Nakuru County Assembly & 3 others v Odongo & others Civil Appeal E136 and E137 of 2022 (consolidated).*** 3. *There lies no employer-employee relationship or a prospective employment relationship between the petitioner and the 2nd respondent; therefore, the dispute does not fall within the jurisdictional ambit of this court as contemplated under Article 162(2) (a) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act.* 4. *The petitioner lacks the locus standi to institute the instant suit pursuant to section 12(2) of the Employment and Labour Relations Court Act.* The interested party submitted that, in a similar matter in Nairobi ELRC Petition E253 of 2025 – Elizabeth Chesang & Rosemary Wanjiru Gichuhi v Prof. Paul Kuria Wainaina & 2 others, the court upheld preliminary objections and dismissed the petition for want of jurisdiction. The petitioners lacked an employment relationship with the respondents and therefore had no standing before the court under section 12 of the Employment and Labour Relations Court Act (the ELRC Act). The petitioner’s case is that he has filed the petition in the public interest to safeguard constitutional governance, integrity, and fairness in public appointments. The court lacks jurisdiction to hear the petition on the basis that there exists no employment relationship between the parties as contemplated under section 12 of the ELRC Act. Such a petition should be heard by the High Court pursuant to article 165930 of the Constitution. The Court of Appeal in **Clerk, Nakuru County Assembly & 3 others v Odongo & 7 others [2023] KECA 427 (KLR)** held that, despite the ELRC Act preamble, the dispute did not relate to an employment relationship as provided under section 12 of the Act. The ELRC thus lacked jurisdiction to hear the petition. In **Nick Githinji Ndichu v Clerk, Kiambu County Assembly and another [2014] eKLR**, the court held that to access the ELRC jurisdiction, there must be an employment relationship. Thus, in **Kenya Tea Growers Association Unilever Tea Growers Association v Kenya Plantation and Agricultural Workers Union [2018] KECA 458 (KLR),** the Court of Appeal held that a petition that challenged the validity of the NSSF Act was not a dispute as contemplated under section 12 of the ELRC Act. Hence, in the instant petition, where there is no employment relationship between the parties, the court lacks the requisite jurisdiction, and the petition should be dismissed with costs. The 1st respondent submitted that the mandate of the PSC is to recommend the qualifications of public officers, which the petitioner agrees is addressed under section 55 of the PSC Act. An agency can request that the PSC review the recruitment process and qualifications. In this case, for the position of Vice Chancellor for the 2nd respondent, the review was done pursuant to a similar process for the University of Nairobi and Masinde Muliro University. The review was not done by the 2nd and 3rd respondents, including the interested party, as alleged. The PSC considered the qualifications applicable to other public universities and decided to set a similar standard. The PSC has since observed that in every advertisement for public universities, the process is challenged, hence the need for a standard qualification and recruitment process. Thus, consultations were held with UASU and KUSU as part of public participation. The PSC considered all submissions and proposals and issued the advertisement now challenged in the petition. Such a decision is not influenced by the 2nd and 3rd respondents or the interested party as alleged. The 1st respondent agreed with the interested party's submissions regarding the court's jurisdiction. This is not an employment dispute and the objections should be allowed. The 3rd respondent supported the objections herein and that there is no employment relationship between the parties; hence, the court lacks jurisdiction to hear and determine the petition. It should be dismissed with costs. The 3rd respondent thus submitted that there are Grounds of Opposition to the petition herein on the grounds that the court lacks jurisdiction to hear the petition. In **Kenya Tea Growers Association Unilever Tea Growers Association v Kenya Plantation and Agricultural Workers Union [2018] KECA 458 (KLR)** and **Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others [2025] KECA 937 (KLR)**, the Court of Appeal held that the petitioners were public citizens and had no employment relationship with the respondents. Such a relationship thus lacking, the court is denied the requisite jurisdiction. The 3rd respondent has since left the service of the 2nd respondent and was duly enjoined in these proceedings. His tenure ended on 22 January 2026; hence, he is not a public officer but a private citizen. He is thus not a necessary party herein. The 3rd respondent submitted that the matter is *sub judice.* There exists ELRC Petition E253 of 2025, Elizabeth Chesang v Paul Wainaina. The petition herein should thus be dismissed for want of jurisdiction and being *sub judice.* There exists High Court Petition E838 of 2025, which was filed first and should be the only suit addressing the matters herein, which should be dismissed with costs. The petitioner submitted that section 55 of the Public Service Commission Act (PSC Act) establishes a mandatory process for reviewing the qualifications of any public officer. In the advertisement issued in January 2025, specific qualifications were provided. The court stopped the recruitment process, and in January 2026 a fresh advertisement was issued with a different set of qualifications, which the petitioner has challenged. The new advertisement has enhanced the qualifications for the position of Vice Chancellor of the 2nd respondent, and there is no comparison with section 55 of the PSC Act. To act outside such provisions is unlawful. The petitioner thus submitted that the ongoing Vice Chancellor, the 3rd respondent, and the interested party were among those who formulated the criteria for the vice chancellor’s position. As internal actors, they affected the process, moving from being reasonable observers to directing the qualifications, hence not objective. On jurisdiction, the petitioner submitted that the court is under Article 162(2) (a) of the Constitution allowed to hear employment and labour relations disputes. Recruitment is a critical stage in employment relations. The primary issue in the petition is the recruitment of a vice chancellor for the 2nd respondent. Section 5(3) of the Employment Act provides that there should be no direct or indirect discrimination against any persons seeking employment. Hence, the court has jurisdiction. 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), the Supreme Court held that the ELRC had jurisdiction and established that where there was a nexus to employment and labour relations, the ELRC should hear such a matter. Under the NSSF Act, such being a repository for employees, the court had the requisite jurisdiction. The petition herein relates to recruitment, and the objections regarding jurisdiction have no merit. The petition should be allowed as prayed. **Determination** Several issues emerge from the Preliminary Objections, Grounds of Opposition, and the parties' submissions. As outlined above, the court will first address the preliminary objections, as they raise jurisdictional questions that, once resolved, will determine the outcome of the petition. Whether the court has jurisdiction. Whether the petition is *sub judice.* The objections herein are premised on decisions of the court of Appeal which have since been addressed by the Supreme Court particularly as regards the jurisdiction of the court now addressed in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** and **Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR)**. Indeed, jurisdiction is everything; without it, the court must put down its tools, as held in **Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR.** The petitioner has defined itself as a stakeholder in public higher education in Kenya, and has filed this petition in the public interest to safeguard constitutional governance and fairness in public appointments. In the submissions, the petitioner admitted that indeed, there is no employment relationship with the respondents. The core issue herein is the recruitment process and qualifications of the vice chancellor for the 2nd respondent. Thus, in **Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR),** the Supreme Court emphasised that the ELRC has jurisdiction to hear disputes premised on employment relationships and related matters. That the NSSF Act formed part of that connectedness and the court had jurisdiction to address its constitutionality in terms of article 162(2) (a) and 165(5) of the Constitution. The court therefore held: *As pertains the jurisdiction of the ELRC to determine the constitutional validity of the NSSF Act 2013, the 1st respondent cited article 165(3)(d) which gives the High Court jurisdiction to determine whether any law is inconsistent with or in contravention of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*. It is submitted that to protect jurisdictional integrity of specialized courts, article 165(5) precludes the High Court from determining matters falling within the jurisdiction of specialized courts, and vice versa. …* The court further held: *… there is nothing in the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/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. This is especially so if the statute in question lies at the centre of the dispute. What it cannot do, is to sit as if it were the High Court under article 165 of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and labour relations within the context of the ELRC Act. But, if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, a question arises regarding the constitutional validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue. Otherwise, how else would it comprehensively and with finality determine such a dispute? Stripping the court of such authority would leave it jurisdictionally hum-strung; a consequence that could hardly have been envisaged by the framers of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, even as they precluded the High Court from exercising jurisdiction over matters employment and labour pursuant to article 165(5)(b).* The dominant purpose must be the core consideration. In this case, the issue of recruitment into public office and the position of vice chancellor is in issue. The 1st respondent has since developed the recruitment protocols in consultation with the relevant stakeholders. As these proceedings were pending, the Supreme Court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** clarified the court's jurisdiction. It held that all public-interest disputes and petitions filed by parties without an employment relationship deny the court jurisdiction. Conscious of article 165(5) of the Constitution and the specialised jurisdiction of the court under article 162(2) (a) of the Constitution, and the binding nature of the Supreme Court judgment, the court stands guided. There is no jurisdiction. The court must put down its tools. With regard to sub judice, the petitioner has clarified that the matters pending before the High Court relate to the earlier petition concerning the 2025 advertisement for the vice chancellor’s position. His challenge concerns the January 2026 advertisement that included enhanced qualifications. This, then, is a new and separate matter. However, without jurisdiction as outlined above, the court must stop. The petition raises fundamental questions of law; the parties' submissions offer progressive jurisprudence for the court, and no costs shall accrue. **Accordingly, the court is without jurisdiction. The petition is struck out. Each party to bear its costs.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**