Kyenze & another v Makueni County Assembly Service Board & 3 others (Employment and Labour Relations Cause E028 of 2026) [2026] KEELRC 2064 (KLR) (17 July 2026) (Ruling)

Kyenze & another v Makueni County Assembly Service Board & 3 others (Employment and Labour Relations Cause E028 of 2026) [2026] KEELRC 2064 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2064 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Cause E028 of 2026 HS Wasilwa, J July 17, 2026 Between Meshack Kyenze 1st Claimant Faustine Mutuku 2nd Claimant and Makueni County Assembly Service Board 1st Respondent The Clerk, Makueni County Assembly 2nd Respondent The Speaker, Makueni County Assembly 3rd Respondent The County Assembly of Makueni 4th Respondent Ruling 1.The Claimant filed a Notice of Preliminary Objection dated 20th April 2026 on the following grounds:1.That this Honourable Court lacks jurisdiction to entertain a suit in which the County Assembly is not properly represented by counsel.2.That this Honourable Court lacks jurisdiction to entertain a suit in which the County Assembly is represented by counsel who does not have the mandate to do so as was determined by the High Court in Nakuru in Petition No. E001 of 2026 Gikenyi B & 6 Others Vs Council of Governors and 68 Others.3.That the Respondents’ Pleading as drafted and filed are incurably defective they offend the letter and spirit of the findings in the above-mentioned case as well as the Laws of Kenya.4.That the application is incurably defective, incompetent and an abuse of the court process and should be dismissed with costs. Claimants’ Submissions 2.The Claimants submitted on two issues: whether this Honourable Court has jurisdiction to hear proceedings where there is an unauthorized representation of a party;and who bears the costs of this Application? 3.On jurisdiction, they submitted that the matter was elucidated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, "A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 4.They further relied on Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR citing Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR wherein it was held: “If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae.” 5.The Claimants aver that the High Court in Nakuru, in Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) [2026] KEHC 902 (KLR), issued conservatory orders on 12th January 2026 suspending the engagement, procurement, and payment of private advocates by public entities where in-house counsel exist, save where formal approval is obtained from the County Executive Committee or County Attorney demonstrating the need for specialization and prudent use of public resources, and that no funds may be released for private legal services without Controller of Budget clearance. 6.It is the Claimants' case that these orders remain in force and have not been vacated, yet the Respondents instructed the firm of W.M Kithuka & Company Advocates on 25th March 2026 to represent their interests in this matter notwithstanding the standing ban. They argued that the said firm is acting under an unlawful or irregular instruction, and is in contempt of court orders. 7.The Claimants assert that the Respondents have neither demonstrated nor produced documentary proof of the mandatory formal approval from the County Executive Committee or recommendation from the County Attorney required for the exception. In the absence of such approval, they maintained that engagement of the said law firm is a direct violation of the law and the standing court order. 8.Consequently, the Claimant submitted that the Respondents are not properly before this Court, thus, all pleadings filed by the said firm are incompetent and a nullity incapable of cure. 9.Relying on Owners of the Motor Vessel “Lillian S" (Supra), the Claimants submitted that this Court cannot grant audience to a party appearing in defiance of the directive of a court of competent jurisdiction and of equal standing by dint of Article 162(2) of the Constitution. 10.It is the Claimants’ submission that Makueni County Government maintains a fully functional Office of the County Attorney established under Section 4 of the Office of the County Attorney Act, with the County Attorney being the principal legal representative of the County Government and its entities under Section 7 of the Act. 11.They further submitted that Article 201(d) of the Constitution mandates prudent use of public funds, such that the Respondents' choice to engage private counsel for a routine employment matter, when internal staff are available, is an unconstitutional waste of resources and have not demonstrated a genuine need for specialized expertise. 12.Citing Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR " Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169 Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said; “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 13.On costs, the Claimants relied on Section 27(1) of the Civil Procedure Act, vesting costs in the discretion of the court. They placed reliance on Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR, reiterating that costs should follow the event unless the court orders otherwise for good reason. 14.It is the Claimants’ submission that their preliminary objection is merited and ought to be upheld, and that there exist no good grounds to depart from the general rule, and accordingly pray that costs be awarded to them. Respondents’ Submissions 15.The Respondents submitted that the principles governing preliminary objections are settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA stated as follows: “A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” In the same case, Sir Charles Newbold, P. stated: "A preliminary objection ……….raises a pure point of law which is argued on the assumption thut all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 16.It is the Respondents’ submission although the Claimants' Preliminary Objection challenges the propriety and legality of the Respondents' advocates on record on the allegation that the engagement of external counsel is unlawful, its determination necessarily requires the Court to inquire into factual matters including: whether the firm of M/S W.M. Kithuka & Company Advocates was properly instructed, whether requisite internal approvals and authorisations were obtained, whether lawful justification existed for the engagement of external counsel, and whether circumstances of conflict of interest necessitated such engagement. 17.The Respondents submitted that these are not pure points of law but matters of fact specifically addressed in their Replying Affidavit and supported by documentary evidence, such that once a court is invited to interrogate such matters, the objection ceases to be a preliminary objection in law and must fail in limine. 18.On the Claimants' reliance on Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) [2026] KEHC 902 (KLR), it was submitted that while the decision carries persuasive value, it was rendered by the High Court, a court of equal status to the ELRC under Article 162(2) of the Constitution, and is accordingly not binding but must be considered within its own factual and legal context. 19.The Respondents submitted that the doctrine of stare decisis requires courts to follow decisions of superior courts within the hierarchy, while decisions of courts of equal status remain persuasive and not binding, such that this Court retains discretion to evaluate the applicability of the Gikenyi B (Supra) reasoning to the present case. In support thereof, they cited the Supreme Court decision in Republic v Karisa Chengo & 2 others [2017] eKLR. 20.The Respondents submitted that if the Court were to be persuaded by the reasoning in Gikenyi B (Supra), the said decision did not impose a blanket prohibition on the engagement of external counsel by public entities but expressly recognized circumstances under which such engagement may lawfully occur. 21.It was submitted that paragraph 85 of the decision allowed such engagement where “the specific engagement, procurement, continuing procurement, or engagements of private advocates/law firms has formal justification by the procuring entity on the need for the specialization and assurance of prudent use of public resources.” And where "A formal approval of the Speaker and Clerk for the National Assembly and/or Senate, respectively,vindicating the want-for such a specified area for specialization and guaranteeing that the commitment is hinged on prudent use of public resources.." 22.The Respondents submitted that whether they complied with these requirements is a matter determinable only upon examination of evidence, including internal approvals, resolutions, and the factual context of the engagement. They argued that such an inquiry cannot be undertaken within the confines of a preliminary objection without converting it into a full evidentiary hearing. 23.On conflict of interest, it was submitted that the Respondents had demonstrated that the present dispute arises from an internal restructuring process affecting officers within the County Assembly, involving officers who are professional colleagues of the County Assembly's internal legal officers, such that whether internal counsel could properly represent the Respondents, or whether conflict of interest necessitated external counsel, is a factual matter requiring evidentiary interrogation and falling outside the scope of a preliminary objection. 24.I have examined all the averments and submissions of the parties herein. The gist of the preliminary objection herein relates to the status of counsel on record representing the respondents. 25.The application is based on the findings of the High Court in Nakuru Petition No E001/26 which suspended engagement of private advocates by public entities where in house counsel exist except where special permission is obtained from the County Executive Committee or County Attorney demonstrating the need for specialization and prudent use of public resources. 26.The respondents contested the status of the counsel on record and whether the counsel has any special specialization for the claim before court which cannot be resolved through the preliminary objection as this would require calling of further evidence. 27.It is indeed true that whether or not the counsel on record possess special authorization or not for this claim and whether special authority has been obtained from the County Executive or the County Attorney would require delving into factual issues which go beyond the purview of Mukisa Biscuit case. I therefore find that the preliminary objection cannot stand at this point in time. 28.I proceed to dismiss this preliminary objection accordingly and direct the parties to proceed with the main claim. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JULY 2026.HELLEN WASILWAJUDGE