Ongoma & 3 others v Public Service Commission & 11 others (Constitutional Petition E009 of 2026) [2026] KEHC 8117 (KLR) (9 June 2026) (Ruling)

Ongoma & 3 others v Public Service Commission & 11 others (Constitutional Petition E009 of 2026) [2026] KEHC 8117 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8117 (KLR) Republic of Kenya In the High Court at Eldoret Constitutional Petition E009 of 2026 RN Nyakundi, J June 9, 2026 IN THE MATTER OF ARTICLES 1, 2(1), 2(4), 3(1), 10, 19, 20, 21, 22, 23, 27, 47, 73, 232(1)(d), 232(1)(g), 232(1)(i), 232(2), 234, 258, 259 & 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 10, 27,47,73, 232(1)(d), 232(1)(g), 232(1)(i) & 234 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF APPOINTMENT INTO PUBLIC OFFICE AND IN THE MATTER OF ACTING APPOINTMENTS AND THE EXTENSION OF ACTING TERMS IN THE PUBLIC SERVICE AND IN THE MATTER OF THE UNIVERSITIES ACT, CAP 210 LAWS OF KENYA AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT, CAP 185 LAWS OF KENYA AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, CAP 7 LAWS OF KENYA AND IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT, CAP 185 CLAWS OF KENYA AND IN THE MATTER OF THE MOI UNIVERSITY CHARTER AND STATUTES Between Griffins Ongoma 1st Applicant Trazylyne Gati 2nd Applicant Marvis Ndubi 3rd Applicant Handy Ogwel 4th Applicant and The Public Service Commission 1st Respondent Moi University 2nd Respondent The Moi University Council 3rd Respondent Prof. Kiplagat Kotut 4th Respondent Prof. Loice Maru 5th Respondent The Cabinet Secretary, Ministry Of Education 6th Respondent The Principal Secretary, State Department For Higher Education and Research Ministry of Education 7th Respondent The Attorney General 8th Respondent and The Universities Academic Staff Union, Moi University 1st Interested Party Prof. Isaac Sanga Kosgey 2nd Interested Party Prof.Isaac Njuguna Kimengi 3rd Interested Party Prof. Henry Kirimi Kiriamiti 4th Interested Party Ruling 1.Before this Court is notice of motion brought under the provisions of Article 165(3)(d)(ii) of the Constitution of Kenya, 2010, Rules 13,19,23(1) and (3) of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of the law. The Petitioners seeks the following orders:a.Spent.b.That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an interim Conservatory order restraining the 1st, 2nd, 3rd, 6th, 7th and 8th Respondents, whether by themselves, their servants, agents, or otherwise howsoever, from extending, further extending or in any manner purporting to extend the 4th Respondent's term or from allowing him to act or continue to act as the Vice-Chancellor of Moi University, in the place of the substantive office holder.c.That pending the hearing and determination of the Petition, this Honourable Court be pleased to issue an interim Conservatory order restraining the 1st, 2nd, 3rd, 6th, 7th and 8th Respondents, whether by themselves, their servants, agents, or otherwise howsoever, from extending, further extending or in any manner purporting to extend the 4th Respondent's term and/or from allowing him to act or continue to act as the Vice-Chancellor of Moi University, in the place of the substantive office holder.d.That the Honourable Court be pleased to grant such further or other orders as it may deem just in the circumstances.e.That the costs of this application be provided for. 2.The application is based on the following grounds:a.That the Applicants/Petitioners have filed a petition challenging the utilization of public funds at Moi University, as well as the violation of Section 34(3) of the Public Service Commission Act, which provides that a public servant shall not be appointed in an acting capacity for a period exceeding 6 months.b.That since the 4th and 5th Respondents and others, whose acting terms commenced on the 31st day of January 2025, remain in office ostensibly pursuant to extensions, and therefore the Petition establishes a prima facie case with a likelihood of success.c.That it is not in the public interest for public funds to be expended on two sets of Vice-Chancellors and Deputy Vice-Chancellors, particularly in light of the university’s prevailing financial constraints, thereby occasioning prejudice to the public.d.That no administrative vacuum will arise, as there exist substantive officeholders who may assume their duties and/or be subjected to lawful disciplinary processes, should there be any alleged wrongdoing, instead of continued acting appointments.e.That it is in the public interest that a competitive recruitment process for the positions of Vice-Chancellor and Deputy Vice-Chancellors of Moi University be undertaken in compliance with the Constitution, the Universities Act, the Public Service Commission Act and all other relevant laws.f.That the Respondent's actions are a violation of the rule of law, the national values and principles of governance, the principles of public service, and are therefore illegal.g.That unless restrained, the continued occupation of office by the 4th and 5th Respondents and any others acting in positions, against the dictates of the law, at Moi University during the pendency of this suit will occasion irreparable harm and perpetuate a breach of the law. 3.In support of the application is the annexed affidavit of Griffins Ongoma who deponed as follows:a.That I am aware that on the 17th Day of January 2025, following investigations into the financial management and/or mismanagement at Moi University, the Ministry of Education, through the Cabinet Secretary (Julius Ogamba), installed a new Moi University Council, with Professor Noah Midamba as its Chairman.b.That the council was inaugurated on the 22nd Day of January 2025 and tasked to save the institution from collapse.c.That shortly thereafter, the Council implemented radical changes to the university’s management, placing the Vice-Chancellor, Professor Isaac Sanga Kosgey, on an eight-month compulsory leave.d.That at the same time, the Deputy Vice-Chancellor of Academics, Research, Extension and Student Affairs, Professor Isaac Njuguna Kimengi, and the Deputy Vice-Chancellor of Administration, Planning and Strategy, Professor Eng. Kirimi Kiriamiti were sent on a one-year sabbatical leave.e.That as a consequence, Professor Kiplagat Kotut was appointed as the Vice-Chancellor in an acting capacity effective from Friday, the 31st Day of January,2025.f.That also appointed were Professor Khaemba Ongeti and Professor Loice Maru as acting Deputy Vice-Chancellors.g.That I am aware that Prof. Kiplagat Kotut (the 4th Respondent) and the acting Deputy Vice-Chancellors have continued to serve in those positions to date.h.That it follows then that Moi University (the 2nd Respondent) continues to remunerate two Vice-Chancellors as well as a set of two Deputy Vice-Chancellors, notwithstanding that it is publicly known that the University is experiencing financial constraintsi.That I verily believe that it is against the public interest and principles of public finance for public funds to be expended on two Vice-Chancellors and two sets of Deputy Vice-Chancellors, particularly in light of the university’s prevailing financial crisis.j.That I certainly believe that, unless restrained by this Honourable Court, the continued occupation of office by the 4th and 5th Respondents and any others in acting positions, against the dictates of the law, at Moi University during the pendency of this suit will occasion irreparable harm and perpetuate a breach of the law.k.That no administrative vacuum will arise, if the conservatory orders sought are granted, as there exist substantive office holders who may assume their duties and/or be subjected to lawful disciplinary processes, should there be any alleged wrongdoing, instead of continued acting appointments. 4.This application was canvassed by way of written submission in which learned counsel for the petitioner relied on the following authorities to persuade this Court to exercise discretion to grant conservatory orders: Munya v Kithinji & 2 Others App No 5 of 2014 KESC 30 KLR, Assembly of Migori v Aliochier & 2 Others SC App. No. E021 of 2023, KETRACO v Instalanciones Inabesa SA Petition 17 (E024) of 2021 [2023] KESC 10 KLR and HerhhHermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone. 5.The principles developed in the above case law deals with the doctrine of conservatory orders in which the Court requires the violating organ of State to preserve the subject matter, as the Court retains supervisory jurisdiction over the case to ensure the rights in question are actively protected and not to render the pending motion nugatory. The Court exercises these powers of granting conservatory orders drawing from its inherent judicial powers to protect and regulate its own processes whenever the predominant issues falls within the Constitutional litigation. 6.The learned counsel for the petitioners placed reliance on the above authorities did invite the Court to come to their aid arguably to ensure that the Respondent do not frustrate the legal process during the pendency of the proceedings and hence the necessity of the Court moving forward to exercise discretion to grant conservatory orders on the matter. That is the gist of the submission of the learned counsel on the matter at hand in which the Court has also to horizon its legal view to the substantive petition and the order which has been sort by the petitioners 7.On the hand the Respondents opposed the line of arguments being pursued by the petitioners and raised a notice of preliminary objection grounds as follows:a.That this honorable Court lacks jurisdiction to heart and determined this petitionb.That the dispute herein is an employment and labour relations dispute, relating to the appointment, tenure and holding of office by officers within a public university.c.That pursuant to Article 161(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, jurisdiction over employment and labour relations disputes is exclusively vested in the Employment and Labour Relations Court (ELRC)d.That the petitioners have improperly invoked the Constitutional jurisdiction of this Court in an attempt to circumvent the specialized jurisdiction of the ELRC.e.That the alleged Constitutional issues ate ancillary to an employment dispute and do not confer jurisdiction upon this honorable Court.f.That the petition is incompetent, misconceived and an abuse of the Court process. 8.The preliminary objection was accompanied with the legal principles which normally guided Courts in destemming the predominant issue test in a subject matter under litigation as between the parties as settled in the following cases: Mukisa Biscuits Ltd vs West End Distributors (1969) Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd& Another [2018] eKLR and Mbaluka & Associates Advocates vs Daniel Ogola Okello & Co. Advocates. 9.In a nutshell the Respondents counsel argued and submitted that this Court has no jurisdiction to entertain the disputes at hand and such determination if the Court purposes to go ahead, the orders would be voidable for want of jurisdiction. The gist of the petition is based on the following remedies that at the end of it all this honorable Court do make the following declarations:a.The continued extension of acting Vice-Chancellor and Deputy Vice-Chancellors beyond the periods prescribed by the Moi University Charter, the Universities Act, and the Public Service Commission Act is unlawful, ultra vires, and unConstitutional.b.Such prolonged acting appointments violate the right to fair administrative action under Article 47 of the Constitution and breach the principles of good governance, transparency, merit, accountability, and equity under Articles 10, 232, and 259.c.The 4th and 5th Respondents' appointments violate the mandatory procedures outlined in Section 39(1) of the University Act, Section 34 of the Public Service Act, as read with other relevant law.d.Failure by the 1st, 2nd 3rd, 6th and 7th Respondents to initiate a competitive process to recruit a substantive Vice-Chancellor and Deputy Vice-Chancellors of Moi University violates Articles 10, 232, 234, and 259 of the Constitution and Sections 35 and 39 of the Universities Act.e.An Order; Prohibiting any further extensions of acting Vice-Chancellor (the 4th Respondent) and/or Deputy Vice-Chancellors of Moi University beyond the statutory and Charter-prescribed limits, pending proper competitive appointment of substantive officeholders.f.Compelling the University Council and all the relevant authorities to regularize the substantive appointments of the Vice-Chancellor and Deputy Vice-Chancellors of Moi University in accordance with the competitive recruitment and merit-based requirements of the Constitution and the Public Service Commission Act, 2017 (Sections 34, 36, and 37), the Universities Act, the provisions of the Moi University Charter, and the Constitutional principles of good governance and fair administrative action.g.Any Other reliefs that this Honourable Court may deem fit, just and equitable. 10.I have reviewed the notice of motion. The affidavits by the petitioners, the preliminary objection on jurisdiction and the legal perspectives by the parties to the substantive petition. The predominant question to be answered by this Court is whether which of the two issues as between the petitioners and the Respondents would carry the day at this interlocking stage. Decision 11.In the first instance as adverted to by the petitioners conservatory orders are being sought and their aim is to preserve the status quo and prevent a dispute as between them and the Respondents from being rendered nugatory. The governing principles are similar in Kenyan jurisprudence and temporary injunctions. The Superior Court including the apex Court of the land have established the parameters of interim relief, stay orders and preservation of the subject matter pending the hearing and determination of the main petition or suit or claim before the appropriate forum duly constituted under Article 50 (1) of the Constitution. 12.While adjudicating fundamental rights under Chapter 4 of the Constitution the seminal case of that the supreme Court in Munya v Kithinji & 2 Others App No 5 of 2014 KESC 30 KLR, affirmed as follows:“Conservatory orders" bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as "the prospects of irreparable harm" occurring during the pendency of a case; or "high probability of success" in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the Constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”Similarly, the Court in Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others [2015] eKLR; on the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.” 13.From the perspective of the petitioners in the main petition without necessary discussing the merits of the petition, the Court at an opportune time would be asked to determine whether the Respondents in their decision making process violate the Moi University Charter, the University Act and the Public Service Act which confer powers to extend the employment contract of the Vice Chancellor and Deputy Chancellor in acting capacity. That in the second limb the petitioners have pointed that any such prolonged appointment of the premised offices is in violation of Articles 47, 10, 232 & 259 of the Constitution. Thirdly the petitioners are aggrieved and have sorted refuge in the Constitution for the Constitution Court to render itself as to the provisions of Article 39(1) of the University Act as read with Section 34 of the Public Service Act. Fourthly that an order of mandamus do issue on the university counsel and other relevant authorities to exercise their statutory powers to effectuate and regularize the appointment forthwith. 14.The petitioners therefore in their quest to seek vindication of their Constitutional rights are of the view that a conservatory orders shall in effect give them temporary relief pending the hearing and determination of the main petition. In considering the interlocutory motion by the petitioners I placed reliance in the persuasive dicta by the Constitutional Court of South Africa in the case of Fose vs. Minister of Safety & Security [1977] ZACC 6:Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the Courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights. 15.The first criteria in meeting the threshold of a conservatory orders is the existence if a prima facie case which when presented at the interlocking stage is sufficient to prove a fact or support a valid claim or petition at first sight. It does not mean absolute proof but rather the claims or reliefs or remedies being sought in the main petition or suit have enough apparent substance and merit to require full trial or further judicial consideration. In the province of civil law according to the established prima facie standard (often originating from the Giella v. Cassman Brown principles for injunctions), the plaintiff must show that there is a material, substantive threat to their rights and that the evidence presented, if believed, would support the relief sought. When it comes to Constitutional petition the law envisages that a Constitutional petition must go beyond mere general allegations. In the landmark Kenyan case Anarita Karimi Njeru v. Republic, it was established that Constitutional petitions must set out with a high degree of specificity exactly which rights were violated and how, or face dismissal for lacking a foundation. 16.In determining whether the petitioner has a prima facie case at glance the following conditions provide the framework for judicial discretion: The Claim is Arguable: The petition is not frivolous, vexatious, or built on mere speculation. Elements are Satisfied: On the face of it, if the Respondent were to remain entirely silent, the Court could rule in favor of the petitioner. Specifics are Provided: The facts precisely demonstrate the elements of a wrong, breach of contract, or Constitutional infringement, rather than stating abstract legal principles. 17.On this aspect of conservatory orders and the crystallization of prima facie case the litigation landscape has been navigated by the superior Court since the dawn of the 2010 Constitution as it demonstrated by the following cases, in addition to the principles in the Gitaru Munya case: Anarita Karimi Njeru v. Republic (1979) KLR 154: The foundational precedent for Constitutional petitions, establishing that petitioners must explicitly outline the specific provisions violated to avoid a struck-out or dismissed petition. Giella v. Cassman Brown & Co. Ltd (1973) EA 358: The guiding standard for civil injunctions, dictating that the applicant must establish a prima facie case with a probability of success before temporary orders can be granted Dina Management Limited v. County Government of Mombasa [2021] eKLR SC Petition 8(E010) of 2021: The Supreme Court addressed the Constitutional threshold and the importance of establishing direct violations of the Constitution at a prima facie level. Communications Commission of Kenya & 5 Others v. Royal Media Services & 5 Others (2014) eKLR: Offers the Supreme Court’s perspective on Constitutional litigation, establishing that disputes purely arising from civil/statutory matters should not automatically be elevated to Constitutional petitions without meeting specific Constitutional thresholds. 18.The actual meaning of the phrase prima facie in the legal cycles is often misconstrued in the face of dearth of its precise definition by our Courts. So far the best definition is one given in quite a number of decision in the realm of criminal law and also part of the branch in civil law. what is meant by a prima facie case generally, it only means that there is ground for proceedings but as stated earlier elsewhere in this ruling a prima facie case is not the same as proof which comes later when the Court has to find whether the plaintiff or petitioner or claimant in a civil, commercial or Constitutional petition has evidence in his/her possession which discloses a prima facie case when it such that if un-contradicted under Section 107, 108, 109, & 112 of the Evidence Act it would be sufficient for the Court to enter judgment. That is the threshold issue when looking at the matter as a whole and at the interlocutory stage on the face of it, and so far as it can be judged from first disclosure, presumably a fact presumed is true unless disapproved by some evidence in the contrary. The notice of motion must be considered along this parameters and characteristics of the term prima facie case. So it is one of the core test of interlocutory injunction or conservatory orders. 19.The second category on a request by an applicant or petitioner for interim injunctions or conservatory orders are in the same breadth guided by American Cyanamid v Ethicon Ltd [1975] AC 396 principles where applicants or petitioners must prove there is a serious issue to be tried and damages would not be an adequate remedy for the irreparable harm or substantial loss suffered. In this case American Cyanamid case Lord Diplock expounded the guiding principles as follows on the question of whether there is a serious issue to be tried he said“…The Court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the Court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing": Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”On the matter of the adequacy of damages he said:“As to that, the governing principle is that the Court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.”In explaining when the balance of convenience should be considered, His Lordship explained that:“It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.”Specifically, with regard to the preservation of the status quo, His Lordship made it plain that:“Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.” 20.In an adversarial system the party initiating the case to the petitioners like in our case is burdened with the task to present a prima facie case to the forum adjudicating the dispute enough evidence which supports the claims, or infringement, or violation of the provisions of the statute or the Constitution as pleaded in the petition. 21.I have reviewed the entire spectra of the affidavits and grounds in the notice of motion with an overreach view of the reliefs sought by the petitioners in entire petition. I am of the view there is a prima facie case based on the facts showing some omissions and violation of some rights which ought to be tried on the merits as between the petitioners and the Respondents. 22.However, the question is whether this Court has the jurisdiction which is the life blood of any adjudication of the issues pleaded in the petition within the core categories of the remedies which at the tail end must be granted by a competent Constitutional Court for or against the petitioners. The scope of the original petition has got to be navigated within the matter of Acting Appointments and the Extension of Acting Terms in the Public Service, in the Matter of the Universities Act, Cap 210 Laws of Kenya, in the matter of the Public Service Commission Act, Cap 185 Laws of Kenya, in the matter of the Fair Administrative Action Act, Cap 7 Laws Of Kenya, in the matter of the Leadership and Integrity Act, Cap 185 Claws Of Kenya and in the matter of the Moi University Charter and Statutes. 23.It is trite law that the Court must be properly constituted, the subject matter must be within its jurisdiction and the case must be initiated by the due process of law. In the case of Samuel Kamau Macharia & Another v KCB & 2 Others (2012) the Supreme Court of Kenya embolded this issue on jurisdiction where it observed that a Court’s jurisdiction flows only from the Constitution or legislation and cannot be expanded through judicial craft, innovation or legislative enactments. Similarly, the Court in Alhaji Bello Nasir v Kano State Civil Service Commission & 2 Others SC 144/2003 the Court held as follows:It is now firmly settled that issues of jurisdiction or competence of a Court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of Court, cannot dictate when and law, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any Court including this Court. 24.What this means is that the Respondents have raised a preliminary objection based on jurisdiction of this Court pursuant to Article 162 (2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, jurisdiction over employment and labour relations disputes is exclusively vested in the Employment and Labour Relations Court (ELRC). 25.The threshold competence of a Court under Article 50(1) of the Constitution can only be said to be competent to exercise jurisdiction if the following condition are present:a.It is properly constituted as to numbers and qualificationsb.The subject matter of the suit is within its jurisdictional scopec.There is no feature in the case that prevents it from exercising jurisdictiond.The suit is initiated by due process of law 26.When a challenge is made to the jurisdiction of the Court as in this petition in which the Respondents raised a preliminary objection on the competence of this Court that issue should be settled one way or another before the hearing of the suit or petition. That is the very reason I delved into this issue in answer to whether the meritorious aspect of the contentions raised by the Petitioners can be left to carry the day. The Employment and Labour Relations Court of Kenya is vested with exclusive original civil jurisdiction, appellate and Constitutional jurisdiction powers to adjudicate on labour and employment disputes. Its practice and procedure are regulated by the Court’s Civil Procedure Rules and other statutes particularly the Employment and Labour Relations Court Act. It is not lost by this Court that jurisdiction is the power of a Court to entertain a dispute to adjudicate over it and render a binding decision. As I said earlier elsewhere in this ruling, jurisdiction is to the legal Court constituted as one of the hierarchy forums under the Constitution to undertake adjudication as between disputants in the same manner, what blood is to the human body. Essentially any Act which is taken or done by a Court of law though properly recognized by the Constitution but is precluded by the same Constitution to entertain certain disputes like in our case Article 162(2)(a) of the Constitution does oust the High Court to entertain any matters exclusively vested in the Employment and Labour Relations Court. In the event I entertain the petition as alluded to by the Petitioners any orders made by this Court in want of jurisdiction would be a nullity. I want to state again and again for the benefit of the Petitioners, that jurisdiction which is the life wire of adjudication on matters of employment and labor was disconnected by the Constitution 2010. The best I can do is to down legal tools and pursuant to these provisions carry away the power and authority vested by the same Constitution from saying anything more in so far as the notice of motion or in the future the Constitutional petition by the Petitioners who are seeking remedies against the Respondents. It is worthy to grant costs for the Respondents from being dragged by the Petitioners into a forum of non-conveniens for they cannot plead ignorance of the law as a defence on jurisdiction. DATED AND DELIVERED AT ELDORET VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE