https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8686

Makena & 2 others v County Public Service Board Meru County & 2 others (Petition E011 of 2026) [2026] KEHC 8686 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 8686 (KLR) Republic of Kenya In the High Court at Meru Petition E011 of 2026 HM Nyaga, J June 16, 2026 Between Mutuma Gladys Makena 1st Petitioner Diana Ntinyari Maore 2nd Petitioner Alice Nyambura 3rd Petitioner and County Public Service Board Meru County 1st Respondent The County Government of Meru 2nd Respondent The County Secretary Meru County 3rd Respondent Ruling 1.Vide a petition dated 12th March 2026, the petitioner moved the court seeking the following prayers:1.That this application be certified urgent and the same be heard ex-parte in the first instance.2.That pending the hearing of this application, interpartes a conservatory order of injunction do issue restraining the respondents, their agents, and assigns from interviewing, recruiting and or hiring from the interview for Early Childhood Development Education teachers beginning on 17th March 2026 anyone of the shortlisted persons slated to be interviewed on pursuant to the notice dated 3rd March 2026.3.That pending the hearing of this petition, interpartes a conservatory order of injunction do issue restraining the respondents, their agents, and assigns from interviewing, recruiting, and or hiring from the interview for Early Childhood Development Education teachers beginning on 17th March 2026 anyone of the shortlisted persons slated to be interviewed on the said date pursuant the notice dated 3rd March 2026.4.Costs hereof provided for.5.That this court do give directions on the hearing of the substantive petition.6.That the costs of this application be borne by the respondent. 2.Contemporaneously, the petitioner filed an application of even date which sought the following prayers: -a.A declaration that the respondents in shortlisting candidates for interviews on 17th March 2026 in respect of the advertisement dated 18th December 2025 acted contrary to the provisions of the law and the 2010 Constitution of Kenya.b.A declaration that the letter/notice dated 3rd March 2026 was made in contravention of the 2010 Constitution of Kenya, the Employment Act and of the Public Service Commission Act.c.A declaration that the recruitment process conducted by the respondents herein in unconstitutional therefore null and void.d.An order setting aside respondents recruitment process of the vacancies advertised by the 2nd respondent and an order revoking the notice for shortlist and interview schedule dated 3rd March 2026.e.An order of Mandamus compelling the 1st respondent to re-run the recruitment process again in a fair, transparent, and merit-based manner.f.General damages for breach of the petitioners’ rights.g.Costs and interest of the petition. 3.The respondents entered appearance and each filed a preliminary objection. 4.The first respondent’s preliminary objection is dated 18th March 2026 and it set out the following grounds: -a.The court lacks jurisdiction to hear this petition courtesy of section 77(2) of the County Government Act and section 87(2) of the Public Service Commission Act 2012.b.The court lacks jurisdiction to entertain this petition courtesy of section 12 of the Employment and Labour relations Court and Article 162(2)(a) of the Constitution. 5.The 2nd and 3rd respondents preliminary objection is also dated 18th March 2026 and based in the following grounds:a.The court lacks jurisdiction to hear this petition courtesy of section 77(2) of the County Government Act and section 87(2) of the Public Service Act 2012.b.The court lacks jurisdiction to entertain this petition courtesy of section 12 of the Employment and Labour Relations Court and Article 162(2)(a) of the Constitution. 6.When the parties appeared before the court, they were directed to deal with the preliminary objection, since it is premised on the question of the jurisdiction of this court to entertain the petition. 7.Parties filed their respective submissions. 1st respondent’s submissions: 8.It was submitted that the objection was proper as it questioned the jurisdiction of the court. Cited in support of this submission was the celebrated case of Mukisa Biscuits and Co. Ltd vs West End Distributors Ltd (1969) E.A 696. 9.On the question of jurisdiction, the respondent cited another celebrated case that of the Owners of Motor Vessel Lilians vs Caltex Oil (Kenya) Limited (1989) I KLR 1. It was submitted that this court lacks the jurisdiction to entertain the petition in view of the mandatory provisions of Article 234 (2) (ii) of the Constitution which vests jurisdiction on the Public Service Commission to hear and determine appeals in respect of County Governments Public Service. 10.It was further submitted that under section 77 of the County Governments Act, any person dissatisfied by the decision made by a County Service Board ought to appeal to the Public Service Commission. 11.It was also submitted that section 87(2) of the Public Service Commission Act expressly bars persons from filing any legal proceedings in any court with respect to matter within the jurisdiction of the commission unless the procedure provided for under the Act has been exhausted. 12.The 1st respondent cited the case of Nakuru Civil Appeal No. E136. The Clerk, Nakuru County Assembly and 2 Others -vs- Kenneth Odunga and 2 Others which upheld the Court of Appeal decision in Secretary County Service Board and Another vs Hulbai Gedi Abdille (2017) e KLR. Also cited was the decision in Republic vs Migori County Secretary and Another, Exparte Njieda and 8 Others (2022) KEELRC 13209 (KLR). 13.Citing the Supreme Court’s decision in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd and 2 Others (2012) e KLR on jurisdiction, it was submitted that there exist alternative remedies that the petitioners ought to have invoked prior to seeking redress before this court. Cited in support of this submission was the decision in Speaker of National Assembly vs Njenga Karume (2008) I KLR 425 and Agava -vs- Otichilo and 2 Others ELRC Petition No. 6 of 2023 KEELRC 1099 (KLR). Also cited was Alumasa vs County Government of Busia (2025) KEELRC 2667 (KLR). 14.To buttress the argument on the doctrine of exhaustion, the 1st respondent cited the decision in Koech vs County Government of Kericho and Another (Petition No. E004 of 2023 and Attorney General and Others (2021) e KLR. Other decisions cited were:a.Geoffrey Muthinja Kabiru and 2 Others vs Samuel Munga Henry and 1756 Others (2015) e KLR.b.Bernard Mwege vs Fire Service Africa Ltd and 3 Others (2015) e KLR. 2nd and 3rd Respondents’ Submissions: 15.For these respondents, it was submitted that at the time of filing the petition, the recruitment had been done and the interviews were ongoing, and almost coming to a conclusion. That from this fact there exists a labour dispute which can only be entertained by the Employment and Labour Relations court (ELRC), established under Article 162(2) of the Constitution. Therefore, it is argued this court lacks the jurisdiction to entertain the petition. 16.Just like the 1st respondent, the 2nd and 3rd respondents also cited the provisions of section 77(1) and (2) of the County Governments Act and section 87(2) of the Public Service Commission Act as ousting the jurisdiction of this court. Reliance was placed on the decisions in Nyeri ELRC E010 of 2021, Kenya Union of Pre-Primary Teachers vs Secretary Tharaka Nithi Public Service Board, Kisumu ELRC Petition No. E002 of 2022 Meller Kwamboka Onchari & 14 Others vs County Public Service Board Nyamira County & Another, County Public Service Board and Another vs Hulbhai Gedi Abdille (supra) and Nyeri (CA) Appeal No. 305 of 2019 David Baariu Mwirabu and Another vs Governor of Meru County and Another. Petitioner’s Submissions: 17.It was submitted that Article 23 (3) of the Constitution affords a party to proceedings brought under Article 22, asserting violation or threat of violation of any constitutional or fundamental freedom to prompt the court for any relief set out therein. 18.It was submitted that this court has the original jurisdiction to hear and determine any application for redress of a denial, violation or infringement of fundamental rights and freedom and that jurisdiction supersedes the doctrine of exhaustion of administrative remedies to ensure access to justice. 19.It was argued that Article 23 of the Constitution makes one exception to this court’s original jurisdiction, but it can only be given to subordinate courts such as a Tribunal or the magistrates’ court. That since Parliament has not passed a law transferring original jurisdiction to the said courts, then this court is the first stop in claims of violation of any fundamental right and freedom. 20.It was further submitted that this court under Article 165 of the Constitution has limited jurisdiction in Civil and Criminal matters. 21.The petitioners further submit that their constitutional rights stand to be greatly infringed, and the interview process is likely to cost the taxpayer money if the respondents are allowed to proceed with the scheduled interviews, as the selection process, and criteria violated constitutional principles of inclusion, transparent diversity, merit and equity. That the Public service commission lacks any power and authority to grant conservatory orders or any of the reliefs sought. Analysis and Determination: 22.The parameters of what constitutes a preliminary jurisdiction were set out in Mukisa Biscuits case (supra) as follows:“So far as I am aware, 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 urged as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 23.The objection by the respondents is premised upon the following grounds:a.The jurisdiction of the court to entertain the petition.b.The application of the doctrine of exhaustion. 24.These grounds in my view, are appropriate grounds for a preliminary objection. 25.I will address each ground raised. 26.Jurisdiction is everything. These were the wise words of the Court of Appeal in the Owners of Motor Vessel Lilian ‘s’ vs Caltex Oil Kenya Ltd (supra). The court held as follows regarding jurisdiction:“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.” 27.The court’s duty is thus to establish whether it has the jurisdiction to hear and determine the petition. If I am to find that this court lacks jurisdiction, then it must down its tools as advised in Mukisa Biscuits case (supra). 28.In the event that the court finds that it has jurisdiction then it will proceed to give further orders/directions. 29.The petitioners came to court claiming that: -a.They are qualified teachers having undergone the requisite training.b.The respondents advertised vacancies for the position of Early Childhood Development Education (ECDE) teachers on 18th December 2025.c.That the advertisement stipulated the requirements for appointment.d.That the applicants duly submitted their applications on meeting all the requirements.e.That as such submission, they were asked if they had any ties with someone in the executive or anyone who could push their applications to which they answered in the negative.f.That on 3/3/2026, a shortlist of candidates was published, which did not include the petitioners or other qualified persons which was part of that the recruitment process was marred by nepotism and cronyism.g.That in a bid to conceal the illegal process, the respondents did not indicate the sub-counties that the shortlisted candidates hail from which is a mandatory requirement.h.That more than 80% of the shortlisted candidate hail from a specific sub-county within Meru County.i.That their investigations revealed that the shortlisted candidates were recruited only on the basis of good connections and payment of token to compromise members of the 1st respondent.j.That only one candidate living with disability was shortlisted which was unconstitutional. 30.The respondent’s argument is that the nature of the complaint is such as envisaged under section 77 of the County Governments Act. The same provides as follows:Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the "Commission") against the decision. 31.The respondents further cited section 87(2) of the Public Service Commission Act which provides as follows;A person shall not file any legal proceedings in any Court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals from county government public service unless the procedure provided for under this Part has been exhausted. 32.In Francis Simiyu Tore and Another vs Bungoma County Public Service Board (supra) the court dealt with a petition filed by petitioners who were aggrieved by the decision of the Public Service Board of the County in a recruitment process. The court held that petitioners ought to have exhausted the remedy provided by an appeal to the Public Service Commission. 33.In Norah Ndinda Kamba and Others vs County Public Service Board Machakos County the claimants were employees of the County Government and had applied for various positions advertised by the board. The court held that the correct body to handle their grievance was the Public Service Commission. 34.In Republic vs Kakamega County Public Service Board (supra) the dispute was between an employee of the County and the Board. The court held that it lacked jurisdiction and that the matter ought to have been placed before the Public Service Commission. 35.What is clear from these authorities is that when it comes to the decision of a County Public Service Board, a person aggrieved thereby ought to pursue the remedy provided by law, that is by appeal to the Public Service Commission. 36.Does this apply to a petition by any person including a public-spirited petitioner founded on alleged breach of the Constitution? 37.The petitioners claim that the recruitment process contravened several constitutional grievances namely: -a.Article 235b.Article 56c.Articles 10 and 232d.Article 27e.Article 73f.Article 47 38.The 1st respondent’s position was that the issue is still under the realm of the Public Service Commission. 39.The 2nd and 3rd respondent’s position is that it is the ELRC and not this court that ought to determine the issue. 40.Apart from the cases cited by the respondents the following authorities are worth noting. 41.In Moi Teaching and Referral Hospital and 3 Others vs Gikenyi 3 and 152 Others, (2025) KECA 937 (KLR) the 1st appellant in conjunction with the 2nd appellant published an advertisement inviting qualified persons to apply for the position of the 1st appellant’s Chief Executive Officer 8 candidates were then shortlisted and invited for interviews. The 1st to 7th respondents petitioned the High Court at Nakuru citing gross violation of the Constitution and ethnic marginalization. The High court issued conservatory orders which were granted. The matter went to the Court of Appeal which examined the question of jurisdiction of the High Court of Kenya. The court held as follows: -“We have read all the pleadings in the consolidated petitions. The 1st to 7th respondents in their petition are challenging what they view to be an on opaque recruitment process, the requirement for boards of state corporations to seek concurrence of their appointments with the chief of staff head of the public service, appointment of chief executive officers of the said agencies during a period the statutory instruments had expired all being contrary to Article 1, 2, 3, 10, 27, 28, 35, 41, 43, 54, 55, 56, 73,75, 94, 201 and 232 of the Constitution. The 1st to 7th respondents originated the petition not as employees of the four parastatals but as citizens seeking to enforce the Rule of law. There being no employer-employee relationship as required by Section 12 of the Act, we are persuaded that the issues raised in the petition fall within the jurisdiction of the High Court. Therefore, we find no reason to fault the learned judge for dismissing the objection based on this ground. As the High Court correctly noted, the grievance is not a dispute between employer and employee but rather an unconstitutional recruitment in contravention of the Constitution based on ethnic considerations and not meritocracy.” 42.In Ngaira vs Nairobi City County Government and 6 Others (2026) KEHC 6824 (KLR) the High Court was called upon to determine a similar question. In that case the petitioner challenged a decision of County Public Service Board of Nairobi County placed an advertisement for the recruitment of officers across various cadres within the markets and trading services. The petitioner was not an employee of the county. 43.In examining the question of jurisdiction, the court held as follows:“The Petitioner’s grievances that the recruitment process was opaque, that external candidates were treated as internal, that there was no public participation or stakeholder engagement, that the recruitment was conducted without proper budgetary provision or needs analysis are all not grievances that arise from and relate to an employment relationship.From clear reading of Section 12(1) of the Employment and Labour Relations Court Act there is no relationship that has been established to exist between the Petitioner and the Respondent herein falling to what can be referred to employment and Labour Relationship between Petitioner and the Respondent. The constitutional questions raised in the Petition and relief sought in the Petition do not in any way fall within any of the categories or classes as captured by Section 12 of the Employment and Labour Relations Court Act No. 20 of 2011. I find that no issue has been demonstrated to arise as labour relations between the Respondents and the Petitioner.The Court acknowledges that the Petition raises important questions concerning the values and principles of public service under Article 232, including the requirements of transparency, accountability, and fair, merit basedappointments. These are weighty constitutional questions that deserve judicial consideration.The Court is alive to the fact that both the High Court and Employment and Labour Relations Court have concurred and coordinate jurisdiction to determine violations of constitutional rights but the Employment and Labour Relations Courts jurisdiction is invoked when the dispute relates to employment and labour relations. I find from the constitutional questions and issues raised that this dispute does not relate to employment and labour relations.…….As far as the jurisdiction of the Employment and Labour Relations Court is concerned, it is confined to matters where a relationship of employer employee exists, and if constitutional questions arise because of that relationship, that is what is to be exclusively dealt with by the Employment and Labour Relations Court.In the instant case however, it is apparent that the Petition is raising questions touching on transparency, accountability, and fair, merit-based appointments without being tied to any specific employer-employee relationship. This matter falls within the exclusive jurisdiction of the High Court under Article 165(3) (d) (ii) of the Constitution.” 44.The court referred to the decision of the Court of Appeal in Public Service Commission and 4 Others -vs- Cheriyot and 20 Others (2022) KECA 15 KLR where it was held as follows: -“In the absence of an employee-employer relationship, it is ourconsidered view that the court that had jurisdiction to entertain and determine the issues raised in the consolidated petitions was in fact the High Court. The establishment of the High Court is found at article 165(1) of the Constitution. Under article 165(3), the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been violated, infringed or threatened. Under article 165(d)(i), the High Court has jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution. 45.Also cited was Sollo Nyuki vs Salaries and Remuneration Commission and 2 Others (2019) e KLR where the court (Odunga J. as he then was) looked at a petition that appeared to transcend between the jurisdiction of the High Court and the ELRC it was held as follows: -“In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialised courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of Petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisdictional competence and specialization.Accordingly, where the matters raised fall both within thei jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings.” 46.In County Government of Kakamega and 2 Others vs Catherine Raini Omweno and Others (2025) KECA 190 (KLR), the Court of Appeal examined the same issue. It held as follows: -“We are of the view that by parity of reasoning, the questions presented in the consolidated appeals before us do not fall within the meaning of disputes related to employment and labour relations and that, therefore, the ELRC did not have jurisdiction to deal with the petition before it and should have allowed the preliminary objection pursued by the respondents before it. The matter should have been appropriately before the High Court which has unlimited subject matter jurisdiction.” 47.Similarly, County Assemblies Forum vs Attorney General and 3 Others Public Service commission (Interested Party) 2022 KESC 66(KLR) the Supreme Court weighed the nature of dispute that this court can handle. It held as follows: -“On the question of appropriate forum of the dispute, the trial court found that the question of enforcement of rights and fundamental freedoms even touching on the employment and labour is within the competence of the High Court pursuant to article 22. We are inclined to agree with the trial court and add that articles 23 and 165 of the Constitution fortifies this position as they are the provisions that gives the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights.” 48.From these authorities, it is clear that once a question of gross violation of the constitution is raised by a party, and especially one who is not in an employee – employer relationship, then the appropriate court to address the issue is the High Court. 49.This court also recognizes the decision of the High Court at Busia in Orogo vs Chairman Board of Directors Kenya Revenue Authority and Another (2024) KEHC 1968 (KLR) in which the petitioner had challenged the recruitment process of employees of various cadres within Kenya Revenue Authority. While the court was not asked to determine the question of jurisdiction as a preliminary point, it went ahead to hear the petition and issued the following orders:a.a declaration that the June 2023 recruitment of the 1,406 revenue service assistants was unconstitutional, as it offends the preamble to the Constitution and the provisions of Articles 10, 27, 56 and 232(g)(h)(i) of the Constitution;b.a declaration that the 9th October 2023 advertisement for 600 graduate trainees, to the extent it limits employment opportunities to youth of 28 years, is unconstitutional, as it offends the preamble to the Constitution and Articles 10, 27, 56, 232 and 260 of the Constitution; 50.In the instant case, the petitioners have not sought to personally gain from the petition. Their grievances is that having perused the list of shortlisted candidates and from their experience when they applied for the positions advertised, there were gross violations of the Constitution. 51.In my view, such weighty matters pertaining to such allegations are within the jurisdiction of this court irrespective of the nature of the process complained about. 52.Guided by the authorities that I have cited, I find that this is the appropriate forum to address the petition. 53.Consequently, the preliminary objections are overruled. 54.Costs shall abide by the outcome of the petition. DATED, SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF JUNE, 2026.H. M. NYAGAJUDGE