https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2295

Ouma v Board of Directors, Kenya Electricity Transmission Company Ltd & 3 others (Petition E033 of 2026) [2026] KEELRC 2295 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2295 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Petition E033 of 2026 Nzioki wa Makau, J July 31, 2026 IN THE MATTER OF: ALLEGED VIOLATIONN OF ARTICLES (2)(1),10, 22, 23, 73, 75, 201, 227, 232 & 258 OF THE CONSTITUTION OF KENYA IN THE MATTER OF VIOLATION OF CHAPTER SIX OF THE CONSTITUTION IN THE MATTER OF VIOLATION OF SECTIONS 7, 8, 9, 10, 11 AND 46 OF THE LEADERSHIP AND INTEGRITY ACT, NO. 19 OF 2012 AND IN THE MATTER OF CORRUPT CONDUCT AND PROCUREMENT IRREGULARITIES AT THE KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED AND IN THE MATTER OF STALLED AND/OR NEGLECTED PROJECTS UNDER THЕ DIRECTORATE OF DESIGN AND CONSTRUCTION, KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENBTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 Between Eugine Owino Ouma Petitioner and The Board of Directors, Kenya Electricity Transmission Company Limited 1st Respondent The Kenya Electricity Transmission Company Limited 2nd Respondent and Eng Anthony Tawayi Wamukota 1st Interested Party Ethics and Anti-Corruption Commission 2nd Interested Party Ruling 1.The 1st Interested Party has raised a Preliminary Objection challenging the competence of both the Notice of Motion and the Petition dated 16th June 2026. He contends that, in so far as the proceedings have been instituted by a member of the public pursuant to Article 22(1) of the Constitution, this Court lacks jurisdiction to entertain them by virtue of the decision of the Supreme Court in Supreme Court Petition No. E030 of 2025 (Consolidated with Supreme Court Petition No. E033 of 2025), Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 76 others. According to the 1st Interested Party, matters instituted under Article 22 fall within the jurisdiction of the High Court under Article 165(3)(b) of the Constitution. 2.The Preliminary Objection was canvassed by way of written submissions. 1st Interested Party’s Submissions 3.The 1st Interested Party submits that the Petition is incompetent as it has been instituted by the Petitioner in his capacity as a public-spirited citizen under Article 22(1) of the Constitution to challenge the employment of the 1st Interested Party by the Kenya Electricity Transmission Company (KETRACO). He asserts that such a petition seeks vindication of alleged constitutional violations in the public interest and does not constitute a private employment dispute between an employer and an employee. The 1st Interested Party further submits that, following the Supreme Court decision in Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025), the Employment and Labour Relations Court has jurisdiction over pre-employment and employment disputes only where they involve the categories of parties contemplated under section 12 of the Employment and Labour Relations Court Act and related labour statutes. Reliance is placed particularly on paragraphs 70–75 of the decision, where the Supreme Court held that petitions filed by members of the public under Articles 2 and 22 of the Constitution to advance constitutionalism or challenge public employment processes fall within the exclusive jurisdiction of the High Court under Articles 165(3)(b) and (d) of the Constitution. 4.The 1st Interested Party therefore contends that the Petitioner, having approached the Court as a public-spirited citizen and not as an employee, employer, prospective employee, applicant for employment, trade union official, employers’ federation official, Cabinet Secretary, or a person aggrieved by a decision of the Director of Employment, has filed the matter in the wrong forum. The Court is accordingly urged to uphold the preliminary objection and strike out both the Notice of Motion and the Petition with costs to the 1st Interested Party. 5.In support of these submissions, the 1st Interested Party relies on Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025) and Republic v Karisa Chengo & 2 others [2017] eKLR (as cited by the Supreme Court). Petitioner’s Submissions 6.In opposition to the Preliminary Objection the Petitioner submits that the 1st Interested Party has selectively relied on the Supreme Court decision in Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025), and has mischaracterised its ratio. He asserts that the Supreme Court decision concerned a pre-employment dispute, whereas the present Petition relates to a person who is already in employment and whose continued engagement is challenged on grounds relating to integrity and conduct while holding public office. Accordingly, he maintains that the dispute falls within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. The Petitioner maintains that the Employment and Labour Relations Court is competent to determine constitutional questions arising within employment and labour relations disputes. Reliance is placed on Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR), where the Supreme Court affirmed that the ELRC has jurisdiction to determine constitutional issues connected with employment and labour relations matters. Additionally, he submits that even in Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others [2026] KESC 50 (KLR), the Supreme Court at paragraph 76 recognised that the ELRC has jurisdiction over constitutional issues arising within employment disputes while making reference to Mohammed v National Mining Corporation & another; Kitilit (Interested Party) [2025] KEELRC 2101 (KLR) and Njenga v Executive Director, Kenya Institute for Public Policy Research and Analysis (KIPPRA) & another [2026] KEHC 145 (KLR). The Petitioner therefore urges the Court to find that the present dispute concerns an existing employment relationship and falls squarely within the jurisdiction of this Court, and consequently to dismiss the Preliminary Objection with costs. Respondents’ Submissions 7.The Respondents submit that the 1st Interested Party has misconstrued the Supreme Court decision in Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025) [2026] KESC 50 (KLR). They argue that the Supreme Court was concerned with a pre-employment public interest challenge to a recruitment process and held that such disputes belong before the High Court because they are not anchored on an identifiable employment relationship. Reliance is placed particularly on paragraphs 72, 73 and 75 of the judgment. 8.The Respondents further submit that the present Petition is fundamentally different because it seeks orders affecting the renewal of the contract of an identified employee by an identified employer. They argue that constitutional issues arising within an employment relationship do not divest this Court of jurisdiction, relying on Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR), which was reaffirmed by the Supreme Court in Moi Teaching (supra), for the proposition that the Employment and Labour Relations Court is competent to determine constitutional questions arising within employment and labour disputes. The Respondents also rely on Wamukota v Kenya Electricity Transmission Company Limited & 2 others, [2024] KEELRC 796 (KLR), in which this Court held that disputes arising from the same employment relationship fell within its exclusive jurisdiction under Articles 22, 162(2)(a) and 165(5)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act. They further invoke Republic v Karisa Chengo & 2 others [2017] eKLR, as reaffirmed by the Supreme Court, to emphasise that the courts established under Article 162(2) exercise specialised and exclusive jurisdiction over matters reserved to them. 9.Accordingly, the Respondents submit that the invocation of Articles 22 and 258 of the Constitution does not alter the essential character of the dispute, which remains one arising from an employment relationship within the public service. They therefore urge the Court to dismiss the Preliminary Objection with costs. 2nd Interested Party’s Submissions 10.On its part the 2nd Interested party supports the Preliminary Objection. It contends that this Court lacks jurisdiction to entertain the Petition because, although it concerns an employer and an employee, it is not a dispute relating to or arising from an employer-employee relationship within the meaning of Article 162(2)(a) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act. It asserts that the Petition falls outside the categories of disputes in section 12(1) of the Act because it principally seeks declarations regarding the 1st Interested Party’s alleged breach of constitutional and statutory obligations and his fitness to hold public office. 11.The 2nd Interested Party further submits that, while the Employment and Labour Relations Court may determine constitutional questions, such jurisdiction is limited to constitutional issues that are ancillary and incidental to disputes relating to employment and labour relations. Reliance is placed on Public Service Commission & 2 others v Eric Cheruiyot & 16 others; County Government of Embu & another v Eric Cheruiyot & 15 others (Consolidated), [2022] KECA 15 (KLR), where the Court of Appeal held that constitutional claims fall within the jurisdiction of the ELRC only where they arise from an existing employment relationship and are incidental to matters contemplated under section 12 of the Act. The 2nd Interested Party also relies on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR for the proposition that jurisdiction is everything and that a court must down its tools once it finds that it lacks jurisdiction. Further reliance is placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, where the Supreme Court affirmed that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed or expanded by judicial craft. 12.Accordingly, the 2nd Interested Party submits that, when read together with the Supreme Court decision in Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025), the present Petition falls within the jurisdiction of the High Court rather than this Court. The Court is therefore urged to uphold the Preliminary Objection and strike out the Petition, with costs left to the discretion of the Court. Disposition 13.The preliminary objection is that the Court lacks jurisdiction. The 1st and 2nd Interested Party assert that the Court is not reposed with the legal authority to handle the Petition herein. In the case of Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others, Supreme Court Petition No. E030 of 2025 (Consolidated with Petition No. E033 of 2025) [2026] KESC 50 (KLR) cited by all the parties with some asserting the decision does not support the hearing of Petitions such as the one before me, whilst others assert it supports the position that the Petition before me is before the right Court. 14.In the case of Moi Teaching & Referral Hospital & 3 others v Dr. Magare Gikenyi & 13 others (supra), the Supreme Court Mwilu; DCJ & VP, Wanjala, Njoki, Lenaola & Ouko SCJJ held that at paraggrap 58-62[58]Beyond an employee and employer, a host of other persons, offices, and organizations have access to the ELRC. That should explain the use of the word “including” in Section 12(1) to signify that the category of disputes that may be referred to the ELRC is not limited to those listed. It was therefore an error for both courts to restrict the jurisdiction of the ELRC only to industrial disputes involving employers and employees.[59]The centrepiece of the dispute to which we now turn seeks to resolve the question whether the ELRC has jurisdiction to entertain a petition on the constitutionality of pre-employment procedures and processes, like the advertisement of the vacancy, the shortlisting of qualified applicants, the interview process, and the selection of the successful candidates.[60]We start with the ELRC Act, which was passed in 2011 to provide for the establishment of the court and to define its jurisdiction. It is recognized in Section 12 that the court will exercise exclusive original and appellate jurisdiction in accordance with Article 162(2) of the Constitution, the ELRC Act, or “any other written law which extends jurisdiction to the Court relating to employment and labour relations.”[61]We consider three statutes as constituting “any other written law which extends jurisdiction to the Court relating to employment and labour relations”. The relevant provision of the Labour Institutions Act, 2007 is Section 56, which provides for the manner of making an application for the registration of an employment agency. By subsection (8), “Any person aggrieved by a decision of the Director [of Employment] made in the exercise of his functions under this section may appeal against such decision to the Employment and Labour Relations Court”. Needless to say, the Director and the applicant [the aggrieved person and prospective employee] are not employees or employers, yet their grievance can only be referred to the ELRC.[62]The Labour Relations Act 2007 is another law that relates to employment and labour relations. According to its long title, it is described as a statute that consolidates the law relating to trade unions and trade disputes. It provides for the registration, regulation, management, and democratisation of trade unions and employers’ organisations or federations. Its foundational purpose is to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes. 15.In the case of Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR) (21 February 2024) (Judgment) the Supreme Court held this Court has jurisdiction to determine constitutional issues connected with employment and labour relations matters when it dealt with the NSSF Act. 16.The decisions of the Supreme Court therefore, in my view, permit this Court to hear and determine disputes such as the one before me, as the dispute relates to an employment matter. Having so found that I have jurisdiction, I dismiss the preliminary objection albeit with no order as to costs.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY 2026NZIOKI wa MAKAU, MCIArb.JUDGE