https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1642

Martin & 3 others v Chairman, Kenya Sugar Board & 4 others (Constitutional Petition E021 of 2026) [2026] KEELRC 1642 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1642 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Constitutional Petition E021 of 2026 Nzioki wa Makau, J June 17, 2026 Between Abraham Maritim Martin 1st Petitioner Dennis Odhiambo Mugaн 2nd Petitioner Wellingtone Odhiambo Okumu 3rd Petitioner Calleb Odhiambo Ochieng 4th Petitioner and The Chairman, Kenya Sugar Board 1st Respondent The Chief Executive Officer, Kenya Sugar Board 2nd Respondent The Cabinet Secretary, Ministry of Agricultural and Development 3rd Respondent and The Principal Secretary, Ministry of Agriculture and Livestock Development 1st Interested Party The Hon Attorney General 2nd Interested Party Ruling 1.Before the Court are two Preliminary Objections: the first dated 11th March 2026 and raised by the 1st and 2nd Respondents, and the second dated 16th March 2026 and raised by the Petitioners. Through the Preliminary Objection dated 11th March 2026, the 1st and 2nd Respondents contend that, insofar as the Petition concerns the functionality of the offices of the 1st and 2nd Respondents in the absence of a fully constituted board, it does not constitute a dispute arising from an employer–employee relationship. They further argue that this Court lacks jurisdiction because the 1st and 2nd Respondents, being directors of the Kenya Sugar Board, are not employees of the Board and therefore no employer–employee relationship exists. Additionally, they contend that the Petitioners lack locus standi to institute the Petition within the meaning of section 12(2) of the Employment and Labour Relations Court Act. In support of their objection, they rely on Article 162(2)(a) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act. 2.The Petitioners, on the other hand, have raised a Preliminary Objection dated 16th March 2026 in which they challenge the propriety of the appearance by the firm of Tom Ojienda & Company Advocates for the 1st and 2nd Respondents. They contend that the Respondents are representatives of a state agency or corporation and, as such, ought to be represented by the Attorney General unless express authorization has been granted for engagement of private counsel. According to the Petitioners, no such authorization has been demonstrated and, consequently, all pleadings and documents filed by the said firm ought to be struck out and expunged from the record. 3.On 11th March 2026, the Court directed that both Preliminary Objections be canvassed by way of written submissions. Pursuant to those directions, the Petitioners filed Grounds of Opposition dated 16th March 2026 in response to the Respondents’ Preliminary Objection of 11th March 2026 and also filed submissions dated 26th March 2026 in support of their own Preliminary Objection dated 16th March 2026. The 1st and 2nd Respondents subsequently filed submissions dated 10th April 2026 in support of their Preliminary Objection of 11th March 2026 as well as separate submissions of the same date opposing the Petitioners’ Preliminary Objection dated 16th March 2026. Petitioners’ Ground’s Of Opposition And Submissions 4.In their Grounds of Opposition to the Preliminary Objection dated 11th March 2026, the Petitioners contend that the 1st and 2nd Respondents, being the Chairperson and Chief Executive Officer of the Kenya Sugar Board, a state corporation, ought to be represented by the Attorney General. They argue that, in the absence of such representation, the firm of Tom Ojienda & Company Advocates could only properly come on record upon obtaining authorization from the Attorney General, which authorization has not been demonstrated. In support of this position, they rely on Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) [2026] KEHC 902 (KLR) (30 January 2026) (Ruling) and invoke Article 156 of the Constitution, which designates the Attorney General as the principal legal adviser to the Government. On that basis, they urge the Court to dismiss the Respondents’ Preliminary Objection with costs, as it has been filed by Counsel who are improperly on record. 5.In support of their own Preliminary Objection dated 16th March 2026, the Petitioners submit that the question whether a private law firm is properly on record for a public entity constitutes a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. They reiterate that Article 156 of the Constitution vests the Attorney General with the responsibility of representing Government entities and further rely on the Office of the Attorney General Act, No. 49 of 2012, which regulates the engagement of external counsel. 6.The Petitioners submit that no evidence has been tendered to show that the firm of Tom Ojienda & Associates obtained the requisite approval from the Attorney General or complied with any applicable procurement process. To reinforce this argument, they rely on Republic v Attorney General & another ex parte Francis Andrew Moriasi [2019] eKLR, where the Court emphasized that public bodies ought ordinarily to be represented by the Attorney General and that engagement of private advocates must be justified and undertaken within the law. They further rely on Katiba Institute & another v Attorney General & 2 others; Iseme, Kamau & Maema Advocates (Interested Party) [2018] eKLR, in which the court in stressing that private advocates cannot assume representation of government entities as of right, held that such representation must be supported with proper authorization in compliance with the Constitution and the Office of the Attorney General Act. Additional reliance is placed on Gikenyi B & 6 others v Council of Governors & 68 others (supra) where the court urged caution in the engagement of private counsel, underscoring that issues of transparency, accountability and prudent use of public resources under Article 10, 201 and 227 came into play. The court then went ahead to emphasize that such engagement without demonstration of necessity as well as lack of authorization undermined the Attorney General’s constitutional role. 7.In view of the lack of authority the Petitioners submit that all documents filed by the firm of Tom Ojienda & Associates should be struck out and expunged from the record. They cite the case of Stephen Muriuki Chiuri v Alice Wanjiru Mwaniki & 2 others [2008] eKLR, and Republic v Committee on Senior Counsel & another ex parte Allen Waiyaki Gichuhi [2021] eKLR, in which the common thread was that pleadings filed without authority are incompetent, irregular and liable to being struck out. Consequently, the Petitioners urge the Court to expunge all documents filed by Tom Ojienda & Associates from the record and direct the Respondents to regularize their representation through the Attorney General or other duly authorized Counsel. 1st and 2nd Respondents’ Submissions 8.In opposition to the Petitioners’ Preliminary Objection dated 16th March 2026, the 1st and 2nd Respondents submit that the objection does not raise a pure point of law capable of determination through a preliminary objection. Citing the cases of Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd [1969] EA 696, Oraro v Mbaja [2005] KEHC 3182 (KLR) and Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR), they assert that the question of whether Tom Ojienda & Associates is properly on record is a factual issue requiring examination of instruction letters, approvals and procurement records. They further rely on Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR) where it was held:“For a preliminary objection to be successful, it cannot be a requirement of its foundation that evidence be produced in its support. In other words, the objection does not lie if the objector requires to demonstrate that a party is unauthorized or if in response a resolution or other document under seal requires to be produced as proof of its existence. This effectively defeats the principles behind a preliminary objection in which case it ought not to succeed.” 9.The Respondents further rely on Kamau v Githogori [2025] KEHC 1720 (KLR), in which the Court held that the issue of whether counsel is properly on record is not a pure point of law but a factual matter requiring interrogation by the Court. In any case the 1st and 2nd Respondents submit that even if the issue of representation was determined it would not dispose of the suit, hence the preliminary objection is unsustainable. They reference Waswa v Nyongesa [2024] КЕНC 8891 (KLR), where it was underscored that a finding that an advocate-client relationship does not exist does not spell doom to the suit, as a litigant can simply instruct another advocate. 10.The 1st and 2nd Respondents further contend that the Petitioners’ reliance on Gikenyi B & 6 others v Council of Governors & 68 others (supra) is misplaced and distinguishable. They assert that, unlike in that case where orders were directed at public bodies acting in their institutional capacities, the present proceedings are against the 1st and 2nd Respondents in their individual capacities. They rely on Victor Mabachi & another v Nurtun Bates Ltd [2013] KECA 204 (KLR) for the principle that a company or corporate body has a separate legal personality from its directors and officers. They also invoke section 3(2) of the Sugar Act, which establishes the Kenya Sugar Board as a body corporate capable of suing and being sued in its own name, and maintain that the Petitioners deliberately chose not to sue the Board. They further point out that the conservatory orders issued in Gikenyi B & 6 others v Council of Governors & 68 others (supra) specifically targeted public entities and therefore cannot be extended to restrict the personal legal representation of the 1st and 2nd Respondents. 11.As regards the argument that engagement of private counsel requires prior approval from the Attorney General, the Respondents submit that such approval is not a mandatory precondition. Reliance is placed on Republic v Attorney General; Law Society of Kenya (Interested Party); Moriasi (Ex parte) [2019] KEHC 7013 (KLR), in which the court frowned upon the requirement of the Attorney General’s approval stating that it was ultra vires to the extent that it sought to direct bodies with constitutional and statutory powers the manner in which they should act, stating that such circulars are contrary to provisions of the Constitution, the State Corporation Act, the Public Procurement and Asset Disposal Act and the Advocates Act. Further reliance is placed on Republic v Attorney General; Law Society of Kenya Nairobi Branch (Ex-parte); Law Society of Kenya (Interested Party) [2023] KEHC 27503 (KLR), in which it was stated:“There are two further reasons for impeaching the impugned decision on ground of illegality. One is that the provision of legal services, or any services for that matter, to public entities is not at the whim of the executive or any of its appendages.” The same court further stated:“Nowhere in the Act, and neither has it been suggested that the executive or any section of the executive may interfere with the procurement process of public bodies the services of external counsel are competitively procured through statutory mechanism set out in the Public Procurement and Asset Disposal Act it is only in the awards that exceed the value of Kshs 5 billion that the Attorney General’s clearance is necessary.” 12.The 1st and 2nd Respondents urge the Court not to depart from the foregoing persuasive precedents citing Wambui v Wambui [2024] KECA 474 (KLR), in which it was held that a court of equal status cannot overrule or overturn another because it believes that the earlier court did not consider pertinent issues. As concerns the prayer to expunge pleadings by Tom Ojienda & Associates, the 1st and 2nd submit that it is untenable to the extent that it invites the court to exercise judicial discretion at the preliminary stage. They rely on George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR), maintaining that the prayer for expungement requires the court to interrogate circumstances surrounding the representation before exercising its discretion, something which cannot be determined through a preliminary objection. 13.The 1st and 2nd Respondents contend that expunging a party’s entire defence is draconian and maintains that issues of representation can be cured by allowing parties time to regularize the record. They invoke Article 159 (2) (d) of the Constitution and sections 1A and 1B of the Civil Procedure Act on expeditious disposal of disputes without undue regard to procedural technicalities. They also rely on Donny Langat v Belyon Investments & 3 others [2015] KEHC 5498 (KLR), in which the court held that it would be unjust to throw out litigants just because their advocates filed a Notice of Appointment instead of a Memorandum of Appearance. Consequently, the Respondents maintain that any defect relating to authorization under Gikenyi B & 6 others v Council of Governors & 68 others (supra) is merely procedural and does not justify the drastic consequence of expunging pleadings. Accordingly, they urge the court to dismiss the preliminary objection dated 16th March 2026. 14.Turning to their own Preliminary Objection dated 11th March 2026, the 1st and 2nd Respondents submit that questions of locus standi and jurisdiction are foundational issues which must be determined before the Court embarks on the merits of the dispute. They rely on Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR) and contend that their objection satisfies the criteria of a preliminary objection as articulated in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1968] EA 696, and Oraro v Mbaја [2005] KЕНС 3182 (KLR). 15.The 1st and 2nd Respondents maintain that this court lacks jurisdiction because the substance of the Petition concerns the functionality of the offices of the 1st and 2nd Respondents in the absence of a fully constituted board, rather than an employment dispute. They rely on Article 162(2)(a) of the Constitution, and section 12(1) of the Employment and Labour Relations Court Act which limits the court’s jurisdiction to disputes relating to employment and labour relations. For the same argument, they also cite the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) and Were & 4 others v County Assembly of Trans Nzoia & 8 others [2023] KEHC 26449 (KLR). They further submit that the 1st and 2nd Respondents as board directors are office holders and not employees. In this regard reliance is placed on Rift Valley Water Services Board & 3 others v Asanyo & 2 others [2022] KECA 778 (KLR), in which the court held that in the absence of a contract of service in which a director is engaged as a fulltime employee, it cannot be presumed that the director is an employee of the company. Additional reliance is placed on Simiyu v Cabinet Secretary Ministry of Energy & another; Rural Electrification & Renewable Energy Corporation & another (Interested Parties) [2023] KEELRC 718 (KLR), in which the court held that a board a member is clearly not an employee but is an individual who sits to deliberate on matters of an organisation whenever called upon or when necessary. They assert that to the extent that the dispute concerns legality of actions taken in the governance of a statutory body rather than employment rights this court should down its tools. For this argument they cite Attorney General & 2 others v Okiya Omtata Okoiti & 14 others [2020] KECA 30 (KLR). 16.The Respondents additionally submit that the Petition does not disclose any genuine constitutional question. They maintain that the issue of board quorum is one of statutory interpretation rather than constitutional adjudication. They rely on Musyoka v Clerk, Machakos County Assembly & 4 others; Sereka & 3 others (Interested Parties) [2024] KEHC 4647 (KLR) and Siaya County Public Service Board v County Assembly of Siaya & another [2020] KEHC 5868 (KLR). Invoking the doctrine of constitutional avoidance, they cite Anarita Karimi Njeru v Republic [1979] KLR and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), arguing that the Petitioners have merely cited constitutional provisions without demonstrating with precision how those provisions have been violated. With respect to the Petitioners locus standi to institute the suit, the 1st and 2nd Respondents submit that there is none. They maintain that the Petitioners are not employees of the Kenya Sugar Board thus aren’t among those permitted to lodge a claim under section 12(2) of the Employment and Labour Relations Act. Reference is made to Kenya Council of Employment and Migration Agencies & another v Samuel Mwongera & 2 others [2015] KEELRC 999 (KLR), where the Court emphasized that the jurisdiction of the Employment and Labour Relations Court over constitutional matters is confined to disputes falling within the scope of employment and labour relations. On that basis, they urge the Court to uphold the Preliminary Objection dated 11th March 2026 with costs. Disposition 17.There are two objections before the Court. One relates to the representation of the Respondents. It is argued that the representation of the Respondents who are Government entities should be by the Hon. Attorney General. The other objection is in relation to the locus standi of the Petitioners and whether the Petition is properly before this Court. 18.The determination of the preliminary objection by the Petitioners in light of the decision in Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (supra) will determine the provenance of the response by the Respondents and their preliminary objection. It is argued that the Respondents ought to be represented by the Attorney General. In answer, the Respondents assert rather curiously that they are sued in their individual capacities as relates the engagement as board members. In the case of Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (supra), the Learned Judge (Mohochi J.) stated thus:77.Let’s call a spade what it is, a spade, this is a petition questioning the runaway public legal services bill and the imprudent use of public money by Public bodies and agencies at both the National Government and the County Governments continue to acquire, procure and use private legal advocates which gobble huge Kenyan tax-payer resources contrary to Article 1, 3, 10, 201(a) & (d) & 227(1) of the Constitution on prudent use of financial resources and cost effective services to the public.78.The Court was waiting for the Respondents majorly the State and public officers to offer justification for the condition prevailing and assure Kenyans that all the decisions so far taken in the nature of instructions for provision of external legal representation are prudent, frugal and in public interest which silence has been telling.79.While the Applicants put up a spirited fight, all grounds for variation save for the unforeseen prejudice upon non-parties have been unproven and the court has not been led to any specifics on the myriad of arguments advanced.80.The Position of the 10th Respondent is that the conservatory orders should either be maintained as is or worst-case scenario be varied to allow a window grounded on justification for the instructions and the specialized undertaking absent within the public agency.81.While most submission was made on allegations of there being existing contracts for provision of legal services in the counties, that the orders are creating undue hardship on advocates awaiting payments, that the orders creates prejudice upon non-parties to the petition, that the orders contravene the Advocates Act, the Public Procurement and Disposal of Assets Act, that there exists Mandamus orders that are now unenforceable owing to the blanket orders and that the petitioners are guilty of material non-disclosure leading to the grant of the impugned orders. No evidence was led and show-cased.82.While most advocates were of the view that the Conservatory Order as issued shall cause them undue hardships on pending payments and ongoing instructions, none of them laid any evidence and generalisations must be avoided at all times. As Justice (Rtd) Richard Kuloba warns, “generalisations create a single story, whose main shortcoming is that it creates stereotypes; and the problem with stereotypes is not that they are untrue, but that they are incomplete. Therefore, prudence demands that one ought to be deliberately specific about whatever claim they make, otherwise, it becomes a sweeping statement devoid of sense and justification”.83.The Public Service Commission rightfully sort solace in Article 232(1)(b) on the predicate binding all state and public officers in the efficient, effective and economic use of public resources. That the commission is of the view that it is imprudent to engage external private counsel where the commission has made provision for additional recruitment of inhouse counsel. And where in-house counsel is unable to act then the fall back remains the Attorney General and that bodies falling under the PSC have no authority to instruct external counsel.[Emphasis supplied] 19.The Court is cognisant of the fact that the Respondents are public entities whose legal representation is by default by the Hon. Attorney General. There is nothing that has been demonstrated to justify the interposition of a private law firm in the matter involving the Petitioners and the Respondents since the Attorney General ought to be the one representing the Respondents. 20.The Court finds that the Respondents are representatives of a state agency or corporation and, as such, ought to be represented by the Attorney General unless express authorization has been granted for engagement of private counsel. That the firm of Tom Ojienda & Company Advocates could only properly come on record with the authority of the Attorney General and absent said authority all the documents filed are hereby struck out and expunged from the record. The preliminary objection by the Petitioners is upheld with the consequence the preliminary objection by the Respondents is dismissed. As the litigation before the Court is in the public interest, I will not order any costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF JUNE 2026NZIOKI WA MAKAU, MCIARB.JUDGE