https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2357

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E198 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **KENYA ENVIRONMENTAL HEALTH AND PUBLIC HEALTH PRACTITIONERS UNION………………….……………….…..PETITIONER** *VERSUS* **PUBLIC HEALTH OFFICERS AND TECHNICIANS COUNCIL ………………………………………..……………………….1ST PETITIONER** **REGISTRAR, PUBLIC HEALTH OFFICERS AND TECHNICIANS COUNCIL…………………………………….…..……....2ND RESPONDENT** **NAIROBI CITY COUNTY PUBLIC SERVICE BOARD……………………………………………………...3RD RESPONDENT** **RULING** The Applicant Union filed the instant Petition dated 15th June 2026 contemporaneously with a Notice of Motion of even date under Certificate of Urgency seeking orders against the Respondents that: 1. Spent. 2. Spent. 3. Spent. 4. Spent. 5. Pending the hearing and determination of the petition, this Honourable court be pleased to preserve the *status quo* obtaining as at the date of filing hereof and in particular order that; 6. The registration of Brown Olaly Ashira as a public Health Officer shall remain in force and shall not be suspended, cancelled, withdrawn or interfered with on account of the impugned process. 7. Practice License No. PL0594/26 valid upto 12th March, 2027 shall remain valid and subsisting and shall not be cancelled suspended, withhold or otherwise prejudiced on account of the impugned process. 8. No regulatory, employer, disciplinary or collateral, adverse step shall be taken against him on the basis of the impugned process pending further order of the court. 9. Spent. 10. Spent. 11. Pending the hearing and determination of the petition and court be pleased to order the 1st and 2nd Respondents to cease and desist from further dissemination of unresolved and unproven allegations of touching on the Brown Olaly Ashira’S qualification, registration status or professional standing. 12. Pending the hearing and determination of the petition, the court be pleased to issue a conservatory order protecting the Applicant/Petitioner, a registered trade union from retaliatory or collateral interference with its organizational, representational and associational mandate through adverse action targeted at its elected. Secretary General and Chief Executive Officer on account of his lawful trade union activities. 10.Costs of this Application be in the cause. 11. This Honourable court to grant such further, consequential or attentive orders as may be just, expedient and necessary in the circumstance. The Notice of Motion was expressed under various provisions of the Constitution of Kenya, Employment and Labvour Relations Court Act Fair Administrative Action Act and various provisions of the Constitution of Kenya (Proection of Rights and Fundamental Freedoms) Practice and Procedure Rules and the Employment and Labour Relations Court (Procedure) Rules and based on the ground set out on its face and the Supporting Affidavit sworn by Mr. Brown Olaly Ashira Wasore on 15th June 2026. The Applicant’s case is that Mr. Brown Olaly Ashira Wasore raised a complaint on 11th December 2015 through the 1st and 2nd Respondents about the appointment of examination invigilators and a meeting held 14th December 2025 resolved to exclude all persons who did not satisfy the prescribed academic requirements and licensing requirements from invigilation but Mr. Brown Wasore’s complaint was rejected vide letter date 11th December 2025. That vide letter dated 12th January 2026 Mr. Brown Wasore sought clarification from the Cabinet Secretary Health the legality and status of the Registrar and Acting Chief Executive Officer of the 1st Respondent following redeployment of the 2nd Respondent. That vide letter dated 13th December 2025 one Raphael Kavilu Muli, the Branch Secretary Nairobi, County Branch and Nairobi Regional Secretary of the Applicant was suspended following disciplinary proceedings but he did not attend appeal proceedings. According to the Applicant, vide a complaint allegally by Raphael Kavilu Muli dated 5th November 2025, the 1st Respondent commenced a verification process of Mr. Brown Wasore’s qualifications vide letter dated 16th March 2026 for availment of certified academic documents within ten (10) days followed by a reminder dated 22nd April 2026 which threatened administrative action in the event of default. That the complaint was not disclosed to him but furnished the documents vide letter dated 9th May 2026 under protest and receipt was acknowledged. The Applicant filed the instant suit because the 21 days he was accorded by the letter dated 22nd May 2026 for purposes of verification had lapsed. That vide letter dated 22nd May 2026 the 3rd Respondent informed Mr. Brown Wasore to comply with a request for documents vide letter dated 16th March 2026 and Mr. Brown Wasore feared for his 15 years employment and source of livelihood. When the matter came up on 17th June, 2026, directions on service and hearing on 24th July 2026 were issued Counsel for the applicant and 1st and 2nd Respondents were present and Counsels agreed that the *status quo* be maintained in the interim. The court granted the orders and directed the respondents to respond within 14 days and hearing was slated for 13th July 2026 when counsels for all parties were present. Mr. Odhiambo for the 1st and 2nd Respondents informed the court that he had filed a Notice of Preliminary Objection dated 9th May 2026 and directions on the canvassing of the Preliminary Objection by way of written submissions and ruling date were issued. Counsel for the 3rd Respondent informed court that she had filed a Motion seeking extension of time to file responses to the Notice of Motion and Petition and undertook to withdrawn the motion if the documents filed were admitted and there was no objection from counsels for the Applicant and 1st and 2nd Respondents. The 1st and 2nd Respondent’s Notice of Preliminary Objection dated 9th May 2026 challenges the jurisdiction of the court to hear and determine the instant Application and petition by dint of Article 162 (2) (a) of the Constitution of Kenya and section 12 of the Employment and Labour Relations Court, that there was no employer/employee relationship between Mr. Brown Wasore and the 1st and 2nd Respondent and secondly, the applicant had not exhausted the statutory dispute resolution mechanisms provided by the provisions of Section 37, 38, 39 40 and 41 of the Public Health Officer (Training, Registration and Licensing )Act. Mr. Odhiambo for the 1st and 2nd Respondent submitted that the instant suit did not arise from an employer/employee or labour related dispute as neither the 1st nor the 2nd Respondent was an employer of Mr. Brown Wasore but was questioning the legality of exercise of the Council’s regulatory mandate. Reliance was placed on the Court of Appeal decision in **Governor County government of Kakamega & 4 others v Omwenu & 12 other (2025) KECA 190 (KLR)** on the jurisdiction of the ELRC, to urge that the Court has no jurisdiction to hear and determine the suit before it and the issue of jurisdiction can be raised at any stage. As to whether the suit was premature, counsel cited the Public Health Officer (Training Registration and Licensing) Act (herein after PHOTRL Act) to urge that the statute had an elaborate disciplinary mechanism as demonstrated by the Replying Affidavit of Anthony Wainaina and no disciplinary action had been commenced against Mr. Brown Wasore or a final decision rendered. Reliance was placed on **Chepkamoli v Kavua, General Manager, Kenya Railways Corporation & 6 others (2026) KEELRC 666 (KLR)** to reinforce the submission. Counsel urged that by the instant petition, the petitioner was inviting the court to impermissibly interfere with the statutory mandate of the Council since it was the mandate of the Council to inquire into complaints made to it and the process was ongoing. Finally, counsel submitted that the petition offended the doctrine of separation of powers **3rd Respondent’s Submissions** Counsel relied on the decision in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR)** to submit that the court had no jurisdiction as no employer/employee relationship between the Petitioner and the 1st and 2nd Respondents had been pleaded and the petition was based on statutory verification touching on registration and licensing as opposed to an employment dispute. Counsel submitted that the petitioner had not exhausted the disputed resolution mechanisms under the Public Health Officer (Training, Registration and Licensing) Act and the petition was premature. Reliance was placed on the decision in **Speaker of the National Assembly v Karume (1992) KECA 42 (KLR)** and the sentiments of the court in **Muthinja & another v Henry & 1756 others (2015) KECA 304 (KLR)** to urge that there was nothing to review or restrain. Finally, counsel submitted that the prayers sought against the 3rd Respondent were parasitic upon the impugned process. Counsel urged the court to uphold the Preliminary Objection. The only issue for determination is whether the 1st and 2nd Respondent’s Notice of Preliminary Objection has merit. It is trite that whenever, a Preliminary Objection is raised it ought to be disposed of at the earliest possible instance owing to its potential to dispose of the suit before hearing and determination. The most oftenly cited rendition as to what constitutes a Preliminary Objection are the sentiments of Law JA and Sir Charles Newbold P in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.** **In Attorney General & another v Githinji & another (2016) KECA 817 (KLR),** the Court of Appeal held: *“The test to be applied in determining whether the appellant’s Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (Supra). That is first that the Preliminary Objection raises a pure point of law, second that there is demonstration that all the facts pleaded by the other side are correct, and third that there is no fact that needs to be ascertained”* Since the 1st and 2nd Respondents are challenging the court’s jurisdiction to hear and determine the instant suit as well as the fact that the suit offends the doctrine of exhaustion, the court is satisfied that the Preliminary Objection meets the test in **Mukisa Biscuit Manufacturing Co. Ltd v West and Distributors Ltd (Supra).** It is trite law that jurisdiction is everything as held in **Owners of the** **Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Supra)** The Employment and Labour Relations Court (ELRC) derives its jurisdiction from the provisions of Article 162 (2) (a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act and other Statutes. Under Article 162 of the Constitution, 1. … 2. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to - 3. *employment and labour relations; and* 4. the environment and the use and occupation of and title to land. Under Section 12 of the Employment Act, 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.* Notably, the preambular provision of the Employment and Labour Relations Court Act lays it bare that it is: *“An Act of Parliament to establish the Employment and Labour Relations court to hear and determine disputes relating to employment and labour and for connected purposes”* Thus, the court’s jurisdiction is restricted to hearing and determination of disputes relating to employment and labour relations and for connected purposes. The foregoing is fortified by the sentiments of the Supreme Court in **Samuel Kamau Macharia & another v Kenya Commercial Bank and 2 other (2012) eKLR** that; *“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the constitution or other written law and cannot arrogate to itself jurisdiction exceeding that which is conferred upon it law law…”* Needless to belabour, the jurisdiction of the ELRC has been addressed in countless decisions of the Court of Appeal and the Supreme Court including **Karisa Chengo & 2 others v Republic (2015) eKLR, Paramount Bank Ltd v Vaqvi Syed Qamara & another (2017) eKLR, Hassan Magiya Kiage v Attorney General & another (2017) eKLR, Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR (High Court), Governor, County Government of Kakamega & 4 others v Omeno & 12 others, Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others (2023) KESC 42 (KLR),** among other. In the instant case, it is clear that Mr. Brown Wasore is neither an employee of the 1st nor the 2nd Respondent. In fact paragraph 8 of Petition describe the 1st Respondent as a statutory body established by an Act of Parliament to regulate the training, registration, licensing and practice of Public Health Officers and Public Health Technicians in Kenya and exercises statutory powers. Paragraph 9 of the Petitions describes the 2nd Respondent as the Registrar, Public Health Officer’s and Technicians, Council, a position established by statute. The Applicant is challenging the steps or decisions taken or likely to be taken by the two respondents in excise of their statutory powers as the regulator of the profession, as opposed to employment and labour relations. Clearly, regulation of training, licensing and registration of professionals in public health is neither employment related nor a labour relations issue. Although an employer/employee relationship is not the sole consideration, it is core for the court to assume jurisdiction. The dispute in question must fall within the rubric of “employment and labour relations and connect purposes.” Granted that registration, licensing, deregistration or refusal to licence are not employment or labour relations matters, the court finds that it has no jurisdiction to hear and determine the Applicant’s suit against the 1st and 2nd Respondents and hereby downs its tools. Concerning the doctrine of exhaustion, the 1st and 2nd Respondents contend that the provisions of the Public Health Officers training, registration and licensing Act 2013 provided for a dispute resolution mechanism. It is trite law that where the law prescribes an alternative dispute resolution mechanism, the same ought to be exhausted before the court’s jurisdiction is invoked. In **NGO Co-ordination Board v EG & 4 others (2023) KESC 17 KLR** the Supreme Court stated: *“…Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”* The foregoing was adopted in **Albert Chaurembo Mumbo & 7 others v Munyao & 48 other (2019) eKLR.** In **Nicholus V Attorney General & 7 others.** **National Environmental Complaints Committee & 5 others (Interested Parties) (2023) KESC 113 (KLR),** the Supreme Court reiterated the position as follows; *“In the above decision, we further more emphasized that, where there exists an alternative method of dispute resolution established by legislation, courts must exercise restraint in exercising their jurisdiction as conferred by the constitution and must give deference to the dispute resolution bodies established by statute with the mandate to deal with such specific disputes in the first instance.”* However, there are exceptional circumstances in which a party may be exempted from exhausting the alternative dispute resolution mechanism as held by the Court of Appeal in **R v National Environmental Management Authority (2011) eKLR** cited with approval by the Supreme Court in **Nicholus v Attorney General & 7 others (Supra)** to emphasize that: *“…where there is an alternative remedy especially where parliament has provided a statutory appeal procedure, then it is only in exceptional circumstances that the court can resort to any other process known to law.”* The provisions of Section 9(3) and (4) of the Fair Administrative Action Act codify the doctrine of exhaustion and its exceptions. The provisions of Sections 37, 38, 39 40, and 41 of the PHOTRL Act prescribe an elaborate dispute resolution mechanism as regards licensing of public health officers Section 37 of the Act establishes a Disciplinary Committee constituted by five (5) members but whose quorum is four (4) members. The Registrar, who is the Chief Public Health officer, is the Secretary of the Disciplinary Committee. Disputes may be refereed to Disciplinary Committee by the Public Health Officers and Technicians Council under section 38 of the Act. The Council is a body corporate under section 3 of the Act. It consists of fifteen members and the Chief Public Health Office is a member and its Secretary. Once a matter is referred to the Disciplinary Committee, its task is to inquire into the matter and make recommendations to the council. Under section 40 of the Act the subject must be afforded an opportunity to be heard or in person or through an advocate and the Disciplinary Committee in empowered to administer oath, affirmations, enforce attendance of witnesses and production of books and documents subject to any regulations. Under section 41 of the Act upon recommendations of the Disciplinary committee, the Council may issue a letter of admonition, suspend the registration certificate of the officer or technician for a specified duration not exceeding 12 months, suspend, withdraw or cancel the practising certificate for a period not exceeding 3 months, impose as fine, remove the officer or technician name from the register, order the officer or technician to reimburse cost and witness costs and expenses incurred, withdraw the certificate of registration or practising certificate indefinitely. Under Section 41 (6) of the Act. A public health officer or technician who is aggrieved by the decision of the council in the exercise of its powers under this section may, within sixty days from the date of the decision of the Council appeal to the High Court. Similarly, appeals by public health officers and technicians against suspension, from practice and/or removal from the register lie in the Council for the lifting of suspension and restoration of name in the register. A plain reading of the petitioner/applicant’s Notice of Motion, Petition and the Supporting Affidavit leave no doubt that the internal dispute resolution mechanism has not been invoked or a decision made. indeed, the Petitioner/Applicant is contesting letters as opposed to decisions by any of the respondents. Infact accusation or charges have been made against the petitioner/applicant and verification of certificates by a regulatory body or an employer cannot be characterized as a violation of a person’s constitutional rights. Flowing from the foregoing it is clear that in this instance, the law prescribes an alternative dispute resolution, which has not been invoked and no accusation has been made against Mr. Brown Wasore. For the foregoing reasons, it is the funding of this court the instant suit offends the doctrine of exhaustion. It is premature and it is accordingly struck out for want of jurisdiction. Parties shall bear their own cost. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF 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**