Munubi v Selection Panel for Recruitment of Nominees for Appointment as Chairperson and Members of the National Land Commission & 3 others (Employment and Labour Relations Petition E201 of 2025) [2026] KEELRC 2309 (KLR) (29 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E201 OF 2025 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ARTICLES 2,3,10,19,20,21,22,23,27 & 46 OF THE CONSTITUTION IN THE MATTER OF FAIR LABOUR PRACTICES AND IN THE MATTER OF LEGITIMATE EXPECTATION AND IN THE MATTER OF PRESUMPTION OF INNOCENCE AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF THE RIGHTS AND FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES 2013, RULE 3,4,5,9 AND 10) BETWEEN DR. SALOME LUDENYI MUNUBI………………………………………………....PETITIONER VERSUS SELECTION PANEL FOR RECRUITMENT OF NOMINEES FOR APPOINTMENT AS CHAIRPERSON AND MEMBERS OF THE NATIONAL LAND COMMISSION………….………………………………....1ST RESPONDENT ETHICS AND ANTI-CORRUPTION COMMISSION……………………….. 2ND RESPONDENT DIRECTOR OF CRIMINAL INVESTIGATIONS……………........................3RD RESPONDENT HON. ATTORNEY GENERAL………………………………………………..4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The petitioner filed a petition dated 6th October 2025, in which she alleged an unlawful, unreasonable, and discriminatory decision by the Respondents to bar her from participating in an interview for the position of Member of the National Land Commission (NLC). The Petitioner contended that this action violated her fundamental rights under Articles 27, 28, 41, 47 and 50 of the Constitution and breached the doctrine of legitimate expectation and fair administrative action. The Petitioner sought for the following Orders- a) A declaration that the 1st Respondent’s decision of barring the Petitioner from participating in the scheduled interview for member of the National Land Commission is unconstitutional, illegal and procedurally unfair and violates the Petitioner's right to fair labour practices under Article 41 of the Constitution, a fair administrative action under Article 47 and the presumption of innocence under Article 50 of the Constitution; b) A declaration that upon the Petitioner being shortlisted by the 1st Respondent created a legitimate expectation to be interviewed and the Respondent's failure to honour the expectation constitutes a breach of the principles of fairness, transparency and accountability as entrenched in Article 10 of the Constitution; c) An order of CERTIORARI to quash the decision of the Respondents from barring the Petitioner from participating in the recruitment process; d) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue the Petitioner with any clearance subject to noting the pending cases for as long as the cases remain in court; e) An order of MANDAMUS to compel the 2nd and 3rd Respondents to issue necessary clearances to applicants of the relevant clearances noting pending cases for purposes of job applications; f) Damages for violation of the Petitioner's rights and psychological torture; g) Costs of the suit; h) Any other further relief that this Honourable court shall deem fit to grant. 1. The petitioner, in support of the petition, filed her affidavit, sworn on the 6TH October 2025. The petitioner produced her evidence as follows- ‘I am a member of the Institution of Surveyors of Kenya since 17th June 1999 and a member in good standing with a current practicing license of 2025; Annexed and marked as a bundle SLM-2 is my membership certificate and my current practicing license I previously served as a Director Valuation and Land Taxation at the National Land Commission from 1st November 2013 till 1st November 2023; Annexed and marked as SLM-3 is the letter of secondment. During my tenure as a Director I was charged in two cases ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS which cases are still pending; Annexed and marked as SLM-4 (a) and (b) are the charge sheets in the two cases During the pendency of the said cases I also had an employment dispute with my former employer which was determined in our favour; Annexed and marked as SLM-5 is a copy of the judgment of the Court of Appeal Both cases in paragraph 4 (above) have not concluded almost 7 years from inception; In-fact ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; Annexed and marked as SLM-6 is a copy of the Ruling. On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; Annexed and marked as SLM-7 is a copу of the advertisement. I sought for clearance/no objection letter from the 2nd Respondent by filling the self-declaration form whereby I disclosed my pending suits in court. I also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; Annexed and marked as SLM-8(a) and (b) are the clearances. On 12 September 2025 I submitted my application for member of the National Land Commission; Annexed and marked as SLM-9 is a copy of my application. On 24 September 2025 I was shortlisted for the position of member and was to be interviewed on 6 October 2025 at 9.30 AM; Annexed and marked as SLM-10 is a copy of the shortlist. On 6 October 2025 when I appeared for the interview at 9.30 AM I was informed verbally by the Chairperson of the 1st Respondent that I cannot be interviewed because my clearance from EACC was not good and neither was my good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission are set to lapse on 14th October 2025; The said action by the Respondents are not only in violation of my rights to a fair trial, the right to earn a living and the presumption of innocence but the same is also contrary to the doctrine of legitimate expectation; I have been advised by my Advocates on record which advise I verily believe to be true that my rights have been infringed more specifically in the following ways; i. At the point of shortlisting it is presumed that the 1st Respondent had done a complete background check of all the applicants and by inviting me to the interview then a legitimate expectation arose that I would be interviewed. This is the position upheld by our courts in its decision such as the case of Abdi & 2 others v Speaker, County Assembly of Garissa & another (Constitutional Petition E013 of 2023) [2024] КЕНC 4577 (KLR) (3 May 2024) (Judgment); Annexed and marked as SLM-11 is a copy of the judgment 20 ii. iii. I have never been convicted of any criminal offence. I have for the last 7 years been one of the accused person in ANTICORRUPTION 33 of 2018 R vs PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS both matters which are still pending in court; ANTI-CORRUPTION CASE 6 OF 2019 R VS PROF MUHAMMAD SWAZURI & OTHERS has specifically not proceeded with the Court vide a Ruling on 4th April 2023 given an indictment to the conduct of the ODPP and the EACC in how the matters have been handled and dragged in court; iv. I have to enjoy equal protection of the law more specifically because I have not been convicted of any criminal offence and I enjoy the presumption of innocence until proven guilty. v. I also have a right to work and earn a living. I am a professional with many years of experience and that is why I was shortlisted despite the many applications which were received; I verily believe that the law has to provide equality, fairness, prohibit discrimination, provide certainty and consistency. It defeats the law to have candidates seeking elective positions with pending criminal cases being cleared by the 2nd and 3rd Respondents while candidates in the same position seeking employment opportunities being denied clearance; The 1st Respondent is an ad-hoc committee whose term expires upon submission of named to the appointing authority and if the Court does not intervene in good time it would be impossible to implement any order of this Court if the committee is dissolved.’ Response 1. The 2nd respondent opposed the petition vide grounds of opposition dated 9th October 2025 as follows- EACC is established pursuant to Article 79 of the Constitution for purposes of ensuring compliance with and enforcement of the provisions of Chapter Six of the Constitution. Pursuant to Article 80 of the Constitution, Parliament enacted the Ethics and Anti-Corruption Act, 2011(EACC Act) and the Leadership and Integrity Act, 2012(LIA) for the effective administration of Chapter Six of the Constitution. EACC is mandated to conduct investigations and recommend the prosecution of acts of corruption, bribery, economic crimes or violations of Chapter Six and codes of ethics to the Director of Public Prosecutions pursuant to Section 11(1) (d) of the EACC Act, and Section 43 of the LIA. EACC has the primary responsibility of overseeing and enforcing the implementation of LIA. Nonetheless, Section 4 of LIA requires state organs and public entities to assist EACC whilst undertaking its mandate of ensuring compliance with the enforcement of Chapter Six and to carry out such functions and exercise such powers as may be necessary. On integrity verification process- Section 12A of LIA requires any person desirous to be appointed to a State Office, including membership to a Chapter Fifteen Commission, such as the National Land Commission, to submit to the EACC the requisite Self-Declaration Form. The law aforesaid requires persons seeking appointive posts to demonstrate that they meet the moral and ethical requirements by answering - under oath - the moral and ethical questions contained in a Self-Declaration Form. The completion of the Self Declaration Form does not in itself constitute a no objection, clearance, or confirmation that a person has observed and maintained the stipulated moral and ethical standards, as the information contained in the form must be verified. State organs and public entities rely on EACC to verify the contents of the Self Declaration Form based on the understanding that the eligibility, qualifications and disqualification of persons seeking appointive posts are domiciled in the mandates of various agencies and other state actors/entities. EACC determines whether the constitutional and statutory integrity threshold has been met by candidates seeking appointive posts and forwards an integrity verification report to the respective state body/organ/agency/entity. The purpose of the said report is to guide the state body in the discharge of its mandate under statute and the Constitution indicating whether a candidate has or has not met the constitutional and statutory integrity threshold, such as, if among others they; Have been removed from office by way of Impeachment (ii) Have been Charged (iii) Have been recommended for prosecution (iv) Have been Convicted (v) Have falsified records. State bodies/organs/agencies/entities are under Article 259(11) of the Constitution and Section 4(3) & (4) LIA to act in accordance with the integrity verification report by not shortlisting candidates for state office who have not met the constitutional and statutory integrity threshold. State bodies/organs/agencies/entities are bound by Article 10 of the Constitution on national values and principles of governance to ensure that candidates seeking appointive posts are people of integrity and meet the requirements of Chapter Six of the Constitution. Moral and ethical standard - The threshold -The Constitution does not envisage conviction as the sole applicable criteria for eligibility for persons seeking appointment to a state office. The provisions of Article 73 of the Constitution and the provisions of LIA that outlining the requirements for suitability of a person seeking to be appointed into state office, is stipulated in broad terms ranging from honesty to not committing criminal offences. As such; (i) A person may be morally and ethically unfit but neither charged with a criminal offence nor convicted. (ii) (iii) Gross violation of the Constitution or any other law, abuse of office, or gross misconduct form a basis for removal from state office. However, the evidence may not meet the threshold of criminal prosecution. Indeed, under the Constitution, criminal conviction is not a ground for removal from state office. The Constitution requires a state officer to behave whether in public or private life, in a manner that does not demean the office the officer holds. Action that may demean an office may not necessarily be criminal in nature. Chapter Six of the Constitution places a very high standard of integrity on persons seeking state office. Candidates must be demonstrably incorruptible, and beyond reproach, as the authority assigned to them is a public trust to be exercised in a manner that promotes the purposes and objects of the Constitution. Chapter Six of the Constitution sets out the criteria for entry into public governance institutions. Article 73(2) prescribes that state officers be selected based on personal integrity, competence and suitability. They must be objective and impartial in their decision-making, serve selflessly based solely on public interest demonstrated by honesty in the execution of public duties, and be accountable to the public for decisions and actions. 17.The eligibility and qualification requirement seeks to address the threat of abuse of delegated authority by persons seeking office ex-ante. This is a safeguard, a means of insulating the public from entrusting persons with no demonstrable constitutional values or are proven abusers of authority to state offices. 18. The rationale for the above is that state or public officers occupy positions of trust and carry a solemn burden - that of making decisions that affect the public, are entrusted with substantial public resources, run critical end economic programs and are looked upon to implement the law. Consequently, the limitation of right to seek appointment to a state office is intended to serve greater public good by minimizing the risk of bad governance. Integrity - as a prerequisite for ascension to state office - permeates the entire Constitution from Article 10, Chapter Six, and, Chapter 13 on Values and Principles of Public Service. EACC seeks the intervention of this Honourable Court as the ultimate guardian of the Constitution to give a purposive and progressive interpretation of the Constitution. The material made available before this Honourable Court by the Applicant does not demonstrate a prima facie case, or raise an arguable case to warrant the granting of the conservatory orders sought; therefore, a balance of convenience needs no consideration. The Applicant has not met the threshold for grant of conservatory orders. 2. The 1st, 3rd and 4th respondents entered appearance through the State Law and raised a Notice of preliminary objection dated 9th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act. 3. The petition was canvassed by way of written submissions. All parties filed. DETERMINATION Issues for determination 1. The petitioner raised the following issues for determination in her petition 2. a. Whether this Honorable court has requisite jurisdiction to hear and determine this petition; 3. b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution; 4. c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position; 5. d. Whether the conduct of the Respondents amounted to unfair discrimination and violation of the Petitioner’s right to fair administrative action and fair labour practices; 6. e. Whether the Petitioner is entitled to the reliefs sought in the Petition. 7. The 2nd Respondent identifies the following issues for determination: 8. Whether the Petitioner has established a case to warrant the Court to issue orders of Certiorari and Mandamus as against the 2nd Respondent as prayed. 9. Whether the Petitioner is entitled to damages for violation of rights and psychological torture 10. The 1st, 3rd and 4th Respondents submitted that it compressed the 5 issues raised by the petitioner into 2 issues - 11. Whether this Honourable court has requisite jurisdiction to hear and determine this petition; 12. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution to entitle the Petitioner to the reliefs sought in the Petition. 13. The court found the parties placed the following issues for it to determine in the petition – 14. a. Whether this Honorable court has the requisite jurisdiction to hear and determine this petition; and if in the positive- 15. b. Whether the Respondents’ actions violated the Petitioner’s constitutional rights and freedoms under Articles 27, 28, 41, 47, and 50 of the Constitution; 16. c. Whether the Petitioner had a legitimate expectation to be interviewed for the advertised position; 17. d. Whether the Petitioner is entitled to the reliefs sought in the Petition. Whether this Honourable court has the requisite jurisdiction to hear and determine this petition; 1. This issue arose from the Notice of Preliminary Objection by the 1st, 3rd and 4th respondents dated 9Th October 2025 on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act. 2. The 1st, 3rd, and 4th respondents, in support of the objection, submitted as follows: This court lacks the necessary jurisdiction to hear and determine this matter because the cause of action arises from a constitutionally sanctioned process for selecting Commissioners of independent Constitutional Commissions. The petitioner is challenging the decision of the Selection Panel regarding the recruitment of Commissioners to the National Land Commission under the first schedule of the National Land Commission Act. As the petitioner submitted, Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine disputes related to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee. Section 12 sets out the Court’s jurisdiction: 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, the provisions of this Act, or any other written law extending jurisdiction to the Court relating to employment and labour relations, including disputes concerning or arising from employment between an employer and an employee. In this case, there is no employer/employee relationship between the petitioner and the selection panel, and further, that commissioners are not employees of the commission but rather constitute the commission itself; hence, a special provision was made for their appointment. Consequently, matters related to recruitment, terms of service, and dismissal of commissioners fall squarely within the jurisdiction of the High Court and not the Employment and Labour Relations Court. In this regard, the court's attention is drawn to the binding decision of the Court of Appeal in Attorney General & others v Okiya Omtatah Okoiti & 14 others [2020] eKLR. This case is distinguishable from the cases cited by the petitioner to support her claims, as those cases do not strictly concern the recruitment of commissioners. Secondly, the petitioner appears to narrow the facts of this case by merely alleging that the dispute concerned the constitutionality of the composition and functioning of the selection panel, rather than an individual recruitment grievance. However, this is not true, as the case also challenged the selection and nomination of certain individuals for vetting and appointment as commissioners, which the Court of Appeal stated this court lacked the jurisdiction to adjudicate, just as in this case. The Court of Appeal called for the dismissal of the petition with costs. 3. Conversely, the petitioner took the position that the court had jurisdiction and submitted as follows- Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court (ELRC) to hear and determine all disputes relating to or arising out of employment and labour relations. Section 12 of the Employment and Labour Relations Court Act further defines the Court’s jurisdiction to include disputes arising out of or connected with employment between an employer and employee, or the recruitment process into public service; 162. System of courts (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) Employment and labour relations; 12. Jurisdiction of the Court (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, (a) disputes relating to or arising out of employment between an employer and an employee; An employee within the meaning of section 2 of the ELRC Act is ‘a person employed for wages or a salary and includes an apprentice and indentured learner’. This encompasses members of independent commission whose benefits are drawn from the Consolidated Fund under Article 250(7) of the Constitution, whose remuneration and benefits are paid through a consolidated fund. Consequently, disputes relating to the recruitment, vetting, or appointment of such members fall within the sphere of employment and labour relations. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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 by law… 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.” In the present case, the dispute arises from the Petitioner’s exclusion from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process into public office, which squarely falls within the sphere of employment and labour relations contemplated under Article 162(2)(a) of the Constitution. Courts have consistently affirmed that disputes arising from recruitment processes fall within the jurisdiction of the Employment and Labour Relations Court. In Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR, the Court held that recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the Court’s jurisdiction. Similarly, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, the Court of Appeal affirmed that the Employment and Labour Relations Court has jurisdiction to determine constitutional issues that arise incidentally from employment and labour relations disputes. Recruitment is an integral component of employment and therefore disputes arising from recruitment processes fall within the jurisdiction of this Honourable Court. Section 5(3) of the Employment Act prohibits discrimination in employment and specifically extends protection to the recruitment and selection process, thereby affirming that recruitment forms part of employment relationships governed by labour law. It stipulates as follows; 5. Discrimination in employment (3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee— (a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status; (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. This position has also been affirmed by the courts and we place reliance on the case of Mwau v Inspector General, National Police Service & 3 others; National Security Council & another (Interested Parties) [2025] where Justice Wasilwa nullified the planned recruitment of 10,000 police constables. The Court found that the National Police Service Commission acted unconstitutionally by usurping powers reserved for the Inspector General of Police (IG). Justice Wasilwa ruled that under Article 238(2)(d) of the Constitution, recruitment into national security organs must be conducted by the organ itself that is the National Police Service or the Inspector General of the police and not by an external body like the National Police Service Commission. While the Court of Appeal in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR observed that the appointment of commissioners may in certain contexts be a sui generis constitutional process, that decision must be understood within its specific factual context. The dispute in that case concerned the constitutionality of the composition and functioning of the selection panel rather than an individual recruitment grievance. By contrast, the present Petition arises directly from the Petitioner’s exclusion from an ongoing recruitment process in which she was a participant after being shortlisted. The predominant issue is therefore a recruitment dispute within the public service. Accordingly, the Petitioner submits that this Honourable Court has the requisite jurisdiction to hear and determine the Petition pursuant to Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. 4. The 2nd respondent did not submit on the question of jurisdiction. Decision on the jurisdiction of the court 1. In the present case, the dispute arises from the decision of the 1st respondent to exclude the Petitioner from the interview process for the position of Member of the National Land Commission after she had been duly shortlisted. The gravamen of the Petition therefore concerns the legality and fairness of a recruitment process of members of the National Land Commission. The facts are not in dispute and are summarized to be that - On or about 27 August 2025 the 1st Respondent which is an ad-hoc selection panel advertised for positions of chairperson and members of the National Land Commission; The Petitioner sought for clearance/no objection letter from the 2nd Respondent by completing the self-declaration form whereby she disclosed her pending suits in court. She also sought a Police Clearance Certificate from the 3rd Respondent which was issued indicating the outstanding cases in court; On the 12 September 2025 the Petitioner/Applicant submitted her application for member of the National Land Commission and on 24 September 2025 was shortlisted for the position of member and was scheduled to be interviewed on 6 October 2025 at 9.30 AM; On 6 October 2025 when the Petitioner/Applicant appeared for the interview at 9.30 AM she was informed verbally by the chairperson of the 1st Respondent that she cannot be interviewed because her clearance from EACC was not good and neither was her good conduct from DCI; The interviews by the 1st Respondent for the position of Chairperson and members of the National Land Commission were set to lapse on 14th October 2025. 2. The 1st, 3rd and 4th Respondent raised a Notice of Preliminary Objection dated 9th day of October 2025 as follows- The 1st, 3rd and 4th respondents herein will at the hearing hereof raise a preliminary objection on a point of law to the effect that the recruitment of the chairperson and members of the National Land Commission is not an employment and labour relations issue as contemplated by Article 162(2)(a) of the Constitution and section 12 (1) of the Employment and Labour Relations Court Act. 3. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR emphasized that a court’s jurisdiction flows from either the Constitution or statute or both, and that a court of law can only exercise jurisdiction as conferred upon it. The Court held: “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 by law… 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.” 4. The National Land Commission is created under article 248 (2)(b) of the Constitution. The composition of the commission is as stated in article 250 of the Constitution, which states-‘250. Composition, appointment and terms of office (1)Each commission shall consist of at least three, but not more than nine, members.(2)The chairperson and each member of a commission, and the holder of an independent office, shall be— (a)identified and recommended for appointment in a manner prescribed by national legislation; (b)approved by the National Assembly; and(c)appointed by the President.’’ 1. The enabling legislation is the National Land Commission Act. Section 7 of the Act provides for the membership of the commission as follows: ' 7. Membership of the Commission (1)The Commission shall consist of a Chairperson and eight other members appointed in accordance with the Constitution and the provisions of this Act. (2)The Chairperson and members of the Commission shall be appointed in accordance with the procedure set out in the First Schedule.’ 1. The petitioner had applied to be a member of the National Land Commission following the advert (produced by the petitioner and marked as SLM-7 ). The first schedule to the National Land Commission Act (herein after referred to as, the Act) provides for the procedure for the appointment of chairperson and member of the commission as follows-‘PROCEDURE FOR APPOINTMENT OF CHAIRPERSON AND MEMBERS OF THE COMMISSION (Act No. 28 of 2016, s. 40). (1)The President shall, within fourteen days after the commencement of this Act and whenever a vacancy arises, constitute a selection panel comprising— (a)a nominee of the Office of the President; (b)*deleted by Act*[*No. 28 of 2016*](https://new.kenyalaw.org/akn/ke/act/2016/28)*, s. 40*; (c)a representative of the Cabinet Secretary; (d)two persons, of opposite gender, nominated by the Non- Governmental Organisations Council, who have demonstrated competence and capacity in matters related to natural resources; (e)one person who is a citizen of Kenya, nominated by the Kenya Private Sector Alliance from their member organizations who has demonstrated competence and capacity in the land sector. (f)a nominee of the Association of Professional Societies in East Africa; and (g)a nominee of the National Gender and Equality Commission. (2)The Public Service Commission shall— (a)convene the first meeting of the selection panel, at which the members of the selection panel shall elect a Chairperson from among their number; and (b)provide the selection panel with such facilities and other support as it may require for the discharge of its functions under this Act. (3)The selection panel shall, within seven days of convening, by advertisement in at least two daily newspapers of nationwide circulation, invite applications from persons who qualify for nomination and appointment for the position of the Chairperson and members referred to under [section 8](https://new.kenyalaw.org/akn/ke/act/2012/5/eng%402025-11-04#part_III__sec_8). (4)The selection panel shall within twenty one days after the expiry of the deadline for receipt of applications under paragraph [(3)](https://new.kenyalaw.org/akn/ke/act/2012/5/eng%402025-11-04#att_1__subsec_3)— (a)consider the applications received under paragraph [(3)](https://new.kenyalaw.org/akn/ke/act/2012/5/eng%402025-11-04#att_1__subsec_3) to determine their compliance with the provisions of the Constitution and this Act; (b)short list the applicants; (c)publish the names of the shortlisted applicants and the qualified applicants in at least two daily newspapers of nationwide circulation; (d)conduct interviews of the shortlisted persons in public; (e)shortlist two qualified applicants for the position of Chairperson; (f)shortlist sixteen qualified applicants for the position of the members; and (g)forward the names of the qualified persons to the President. (5)The President shall, within fourteen days of receipt of the names of successful applicants forwarded under paragraph [(4)(g)](https://new.kenyalaw.org/akn/ke/act/2012/5/eng%402025-11-04#att_1__subsec_4__para_g), nominate the Chairperson and members of the Commission and forward the names of the persons so selected to the National Assembly for approval. (6)The National Assembly shall, within twenty-one days of the day, it next sits after receipt of the names of the applicants under paragraph [(5)](https://new.kenyalaw.org/akn/ke/act/2012/5/eng%402025-11-04#att_1__subsec_5), vet and consider all the applicants, and may approve or reject any or all of them. (7)Where the National Assembly approves of the nominees, the Speaker of the National Assembly shall within seven days forward the names of the approved nominees to the President for appointment. (8)The President shall, within seven days of receipt of the approved nominees from the National Assembly, by notice in the *Gazette*, appoint the Chairperson and members of the Commission approved by the National Assembly………’ 1. It was not in dispute that the above process commenced to appoint members of the commission vide advert marked as SLM-7(produced by the petitioner). The petitioner contended that on 24th September 2025, she was shortlisted for the position of member and was to be interviewed on 6th October 2025 at 9.30 AM (Annexed and marked as SLM-10 was a copy of the shortlist). The petitioner stated that on 6th October 2025, when she appeared for the interview at 9.30 AM, she was verbally informed by the Chairperson of the 1st Respondent that she could not be interviewed because her clearance from the 2nd Respondent was not in order, and neither was her good conduct from the 3rd Respondent. 2. The respondents did not dispute that, although shortlisted, the petitioner was not interviewed, and the reason given to her related to a lack of clearance by the 2nd and 3rd respondents. The petitioner was a director of the National Land Commission and admitted that during her tenure as a director, she was charged in two cases, ANTI-CORRUPTION 33 of 2018 R versus PROF MUHAMMAD SWAZURI & OTHERS and ANTI-CORRUPTION CASE 6 OF 2019 R versus PROF MUHAMMAD SWAZURI & OTHERS, which cases are still pending in court. The petitioner argued that, having been shortlisted, she had a legitimate expectation that she would be interviewed. 3. The court, before delving into the merits of the claims by the petitioner, must establish whether it has jurisdiction as challenged in the Notice of Preliminary Objection by the 1st 3rd and 4th Respondents. (Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR) The court finds that the decision relied on, in Court of Appeal in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR, by the 1st, 3rd, and 4th Respondents in support of the Notice of Preliminary Objection raising the issue of jurisdiction, is relevant to the present case. The petitioner submitted that while the Court of Appeal in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR (the decision relied on in support of the objection) observed that the appointment of commissioners may, in certain contexts, be a sui generis constitutional process, that decision must be understood within its specific factual context. The petitioner urged that the dispute in that case concerned the constitutionality of the composition and functioning of the selection panel rather than an individual recruitment grievance. That by contrast, the present petition arises directly from the petitioner’s exclusion from an ongoing recruitment process in which she was a participant after being shortlisted. The main issue is, therefore, a recruitment dispute within the public service. Accordingly, the petitioner contends that this Honourable Court has the requisite jurisdiction to hear and determine the petition pursuant to Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. The court must then apply the facts of this case to determine whether the case authority was relevant to this case. The facts of the case in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR are outlined in paragraphs 8 and 9 of the judgment as follows: 'The process of appointing the chairperson and members of the Commission was immediately challenged through three different suits. The first, Petition No 162 of 2019, was filed by the 1st respondent, Okiya Omtatah Okoiti (Mr. Omtatah), in the Employment and Labour Relations Court on 29th August 2019 and amended on 25th September 2019. Mr. Omtatah contended that the selection process was in violation of the Constitution and the National Land Commission Act and, therefore, null and void because the selection panel did not include the two representatives of the Non-Governmental Organisations Council; the panel failed to advertise in daily newspapers the names of the shortlisted candidates, those qualified, as well as those recommended to the President; the President nominated Ms. Mathenge and Ms. Galgalo as members of the Commission, despite neither having applied nor been interviewed for the position; and that the appointments disregarded principles of regional and ethnic balance. He sought various declarations and orders, including an order to quash the report of the National Assembly Departmental Committee on Land that recommended the appointment of the chairperson and members of the Commission. The second suit, Petition No. 344 of 2019, was filed in the High Court on 30th August 2019 by the 2nd Respondent, Anthony Otiende Otiende (Mr. Otiende). Mr. Otiende’s complaint was that Ms. Mathenge and Ms. Galgalo applied, were shortlisted, and interviewed for the chairperson of the Commission but were unlawfully recommended for appointment as members of the Commission. He argued that the appointment process was not transparent, fair, or accountable as mandated by the Constitution and the Act. The final suit, Petition No. 346 of 2019, was filed on 2nd September 2019, also in the High Court, by the 3rd Respondent, Moses Kiptum Sananga (Mr. Sananga). This respondent’s complaint, like Mr. Otiende’s, related to the nomination of Ms. Mathenge and Ms. Galgalo for the office of member of the Commission, positions for which it was claimed they neither applied nor were shortlisted or interviewed.’ 4. In a nutshell, I find the 2 suits in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR case, supra, related to the fairness and lawfulness of the recruitment process of the members of the National Land Commission, starting with the question of the selection panel composition, the failure to advertise shortlisted candidates, and the appointment of 2 persons as members when they had not been interviewed for the position. I do find that similar issues are before me in the instant petition. There is a dispute by one of the candidates who was shortlisted and denied an interview. The candidate was the petitioner. I find the dispute is about the fairness of the recruitment process. The court was not persuaded that the facts were different. The Court of Appeal upon analysis of the jurisdiction of the court under Article 162(2)(a)of the Constitution and section 12 of the Employment and Labour Relations Court Act held as follows on the issue of jurisdiction of the court in the matter of recruitment of members of the National Land Commission-‘From the above provisions of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and the Act, it is obvious that the jurisdiction of the ELRC is precise and limited rather than unlimited. The straight forward jurisdictional question in this appeal therefore is whether recruitment of members of the National Land Commission falls within the meaning of a dispute relating to employment and labour relations. We have already set out the provisions of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) regarding the Commission which indicate that it is an independent constitutional Commission whose members are appointed in accordance with a special procedure provided by [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and the Act; upon appointment they are only subject to [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and the law and not subject to the direction or control of any person or authority; they enjoy security of tenure and cannot be removed from office except for cause and following a specific procedure entailing recommendations of an independent tribunal as is the case with judges; and their terms and benefits cannot be varied to their prejudice, again just like judges.44.In the Matter of the Interim Independent Electoral Commission [2011[ eKLR, the Supreme Court emphasized that [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) established the independent commissions alongside the Judiciary and entrusted them with special governance mandates of critical importance in the new dispensation. The Commissions are custodians of the fundamental ingredients of democracy such as the rule of law, integrity, transparency, human rights and public participation and are intended to serve as “people’s watchdogs”. To perform that role efficiently, they must operate without undue influence, fear or favour. Subsequently, in its advisory opinion in In the Matter of the National Land Commission, the Supreme Court adverted to the fact that the independent commissions are generally considered a fourth arm of government. 45.What all this suggests to us is that the appointment and removal from office of the commissioners of these independent commissions is not a labour and employment issue as the ELRC erroneously held, but a special constitutional innovation, a sui generis devise to address challenging governance needs and gaps. The appointment of the chairperson and members of the Commission did not involve any of the parties or raise any of the employment and labour relations issues contemplated by section 12 of the Act. With due respect, it was completely off the mark for the learned judge to hold that the recruitment of the chairperson and members of the commission raised employment and labour relations issues merely because they were to be remunerated from the Consolidated Fund. On the parity of that reasoning, the election or removal from office of the President of the Republic or appointment and removal of Judges of the Superior Courts would amount to employment and labour relations issues, merely because they are remunerated from the consolidated fund. 46. We have no doubt in our minds that the ELRC did not have any jurisdiction to entertain the three petitions that led to this appeal. A burning and well founded desire to remedy what are perceived to be violations of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) does not justify seeking redress from a forum in which [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) has not vested the power to issue a remedy. It is a sad case of assuming that a wrong can be made right by another wrong. There is no fidelity to [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) in seeking to enforce [*the constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) through unconstitutional means. The issues raised in the petitions were weighty but were misdirected to the wrong forum. [*The Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) has granted the High Court the requisite jurisdiction to hear and determine those issues and that is where they ought to have been raised. Having come to that conclusion, we have no basis for venturing into the merits of the appeal.47.We have no doubt that the ELRC and the ELC have jurisdiction to interpret and apply [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) as held by the High Court in United States International University (USIU) v. The Attorney General & Others [2012] eKLR and this Court in Daniel N. Mugendi v. Kenyatta University & 3 Others [2013] eKLR. However, the jurisdiction of those specialized courts to interpret and apply [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) is not original or unlimited like that of the High Court. It is limited to constitutional issues that arise in the context of disputes on employment and labour relations or environment and land matters. In Daniel Maingi Muchiri Jubilee Insurance Co Ltd, CA No 138 of 2016, this Court expressed the position as follows: “The Environment and Land Court and the Employment and Labour Relations Court too have jurisdiction to redress violations of constitutional rights in matters falling under their jurisdiction.” (Emphasis added)…..Our final orders are that Civil Appeal No. 621 of 2019 together with the cross appeals in support are hereby allowed to the extent that the ELRC did not have jurisdiction. The judgment of the ELRC dated 14th December 2019 is set aside and substituted with an order dismissing Petition No. 162 of 2019 consolidated with Petition Nos. 344 of 2019 and 346 of 2019.’’ 5. Under the doctrine of stare decisis, a Latin principle meaning “to stand by things decided," the Court of Appeal, being higher in hierarchy and thus its decisions binding on the court, and in the absence of any contrary decision from higher courts, and considering that the court finds the decision relevant to the facts of the case, I uphold the Court of Appeal's decision in Attorney General & 2 Others v Okiya Omtatah Okoiti & 14 Others [2020] eKLR to apply in this case. I hold that the court lacks jurisdiction over the decisions of the respondents due to absence of employer-employee relations. The court found that none of the respondents was the petitioner's employer or a potential employer. The Notice of Preliminary Objection by the 1st, 3rd, and 4th Respondents dated 9th October 2025 is upheld. The court must now conclude its proceedings. There is no need to examine the merits of the decision, as it would be in vain. The petition is dismissed for lack of jurisdiction. To temper justice with mercy, I make no order as to costs against the petitioner, and each party will bear its own costs relating to the Notice of Preliminary Objection and the petition. 6. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE IN THE PRESENCE OF: Court Assistant: Otieno Petitioner- Magogo h/b Chemei 1st, 3rd and 4th Respondents – Eredi 2nd Respondent – absent