https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8234

Mugunda & 21 others v Attorney General (Constitutional Petition 278 of 2016) [2026] KEHC 8234 (KLR) (Constitutional and Human Rights) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8234 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition 278 of 2016 RE Aburili, J June 9, 2026 Between Estate Of Victor Laban Mugunda 1st Petitioner Washington Jechoniah Omolo 2nd Petitioner John Kurume Wang’Ombe 3rd Petitioner Isaac Karanja Muriu 4th Petitioner George Ottaro 5th Petitioner John Wachira Gikonyo 6th Petitioner Stephen Komu Wang’Ombe 7th Petitioner Johnson Mirichu Ngunyi 8th Petitioner Simeon Rolls Masese Angima 9th Petitioner Eliud Ndegwa 10th Petitioner Hezron Mwaura Gitachu 11th Petitioner John Kimani Thuo 12th Petitioner Simon Mbugua Thiong’O 13th Petitioner Aloys Dinga Owiti 14th Petitioner Christopher S. Maina 15th Petitioner Philip Mule Kieti 16th Petitioner Kassim Bidu Galana 17th Petitioner Wiliam Ngigi Gakuna 18th Petitioner Owara Kamau Mulomi 19th Petitioner Yusuf Jirmo Wario 20th Petitioner Francis Miring’U Kiarie 21st Petitioner Daniel Njoroge Gakuna 22nd Petitioner and The Hon. Attorney General Respondent Ruling 1.This is one of the oldest petitions in this division. It was filed on 1/7/2016 and it is only a few days away to turning 10 years. That said, the petition was initiated post 2010 Constitution and about 6 years post the promulgation of the 2010 Constitution. 2.It has been handled by more than 4 judges who have all left the division. Mostly by way of elevation to the Court of Appeal. 3.The initial petition was amended. Hearings, not one, took place and all along from the proceedings that I have read, duly typed, the evidence tendered in support of the petition, although the petitioners claim that their rights were violated, the alleged violations took place in the name of disciplinary proceedings being undertaken by the employer Kenya Defence Forces, on allegations that the petitioners attempted to overthrow the Government through unlawful means following the failed coup detat of the infamous 82 Airforce. 4.The petitioners were allegedly dishonourably discharged and dismissed from service. They seek declaration of violation of their rights, including unlawful dismissal from service and that they be awarded salary arrears and allowances as shall be assessed by the court. 5.This court appreciates that the predecessor Judges have heard the petition by taking viva voce evidence. However, the question of jurisdiction of this court lingers and hovers over the petition. 6.The predominant issue is that of alleged violations by the employer and loss of employment. Those are not eclectic matters. They are matters which are reserved for the Employment and Labour Relations Court and the petitioner’s counsel conceded that indeed, he has had other petitions of similar nature heard and determined by the Employment and Labour Relations Court. 7.I do not know why this petition stuck in this court. All I know is jurisdiction is everything without which a court of law acts in vain. Once the court establishes that it has no jurisdiction, it must down its tools and say no more. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR - Civil Appeal 50 of 1989 where the Court of Appeal stated:“…With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”See Words and Phrases Legally defined – Volume 3: I – N Page 113It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court.” 8.I also know that a court of law cannot arrogate itself of jurisdiction that it does not have, by craft and that neither can parties confer jurisdiction on the court by consent. 9.Again, it is settled law that jurisdiction emanates from the Constitution and the statutes or both. In Samuel Kamau Macharia v. Kenya Commercial Bank and Two others, Civ. Appl. No. 2 of 2011, the Supreme Court of Kenya had the following to say with regard to jurisdiction:“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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Const. Appl. No. 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.” 10.Further, that courts cannot be expected to exercise discretion or mercy to hear parties or take over proceedings which were conducted without jurisdiction. In this case, I appreciate that the parties have been here for a while but from 2016, they only amended their petition on 11/4/2023. 11.Article 165 (5) (b) of the Constitution expressly bars this court from hearing and determining disputes which are expressly reserved for the Supreme Court and the specialized courts contemplated in Article 162 (2) of the constitution. The later courts are the Employment and Labour Relations Court and the Environment and Land Court. 12.Furthermore, the said specialized courts enjoy the jurisdiction to hear and determine constitutional petitions for violation of rights of employees while at work or claims of unfair dismissal or violation of the right to fair administrative action as guaranteed under Article 47. The Employment and Labour Relations court is the place to enforce rights under Article 41 on the right to fair labour practices and attendant rights of employees. 13.It follows that this court, without much ado, upon discovery that it is devoid of jurisdiction, it must down its tools as I hereby do and for want of jurisdiction direct that this file be placed before the Principal Judge of Environment and Labour Relations for further directions on its expeditious disposal. The original physical file be transmitted to the Employment and Labour Relations Court. I so direct and I proceed to close this matter from this end. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE, 2026R.E ABURILIJUDGE