https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2408

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E202 OF 2026** **SIMON PETER PETITIONER** *VERSUS* **THE COMMISSION ON ADMINISTRATIVE JUSTICE 1ST RESPONDENT** **EAGLE HR CONSULTANTS LIMITED 2ND RESPONDENT** **RULING** The ruling herein relates to the 1st respondent's Notice of Preliminary Objections dated 8 July 2026. The objections are that the petition dated 17 June 2026 is bad in law, lacks merit, and is an abuse of court process; hence, it should be dismissed with costs. The grounds are that: 1. *The petition is in contravention of article 165(3) (a), (b), and (d), 165(5) and 162(2) of the Constitution and section 12(2) of the Employment and Labour Relations Court Act.* 2. *The petition has been filed in public interest pursuant to articles 2 and 22 of the Constitution and not on behalf of the petitioner. The petition, as drawn, fails to meet the locus standi threshold established in Supreme Court Petition E030 of 2025, consolidated with Petition E033 of 2025 – Moi Teaching Referral Hospital and 3 others v Dr Magare Gikenyi & 76 others.* On the objections, the petitioner filed a Replying Affidavit and avers that the court had jurisdiction to hear and determine the petition and that the objections should be dismissed with costs. The petitioner avers that he is a prospective applicant for employment with the 1st respondent, intending to apply for the position of Commission Secretary and Chief Executive Officer (CEO). He actively sought the information necessary to participate in the recruitment process. In the petition, the petitioner sought to apply for the position of CEO as advertised by the 2nd respondent on 15 May 2026. He thus wrote to the 1st respondent on 25 May 2026 seeking information on the identity of the 2nd respondent and the hiring process. However, his request was ignored. The letter of request for information indicates that the petitioner was genuinely interested in applying for the position of CEO of the 1st respondent but was unable to do so due to the non-provision of the necessary information by the respondents. He wanted to know the identity of the 2nd respondent for recruitment to a constitutional commission, a fact that had been deliberately concealed. The petitioner avers that on 9 June 2026, he came across a Facebook post on the 1st respondent’s official Facebook page stating that the 1st respondent had received approximately 40 applications for the position of CEO and intended to interview on 16 June 2026. He thus wrote to the 1st respondent on 15 June 2026 seeking confirmation as to whether the 1st respondent had advertised the position and whether the same advertisement published by the 2nd respondent related to the same position. The 1st respondent published another post on their Facebook account on 16 June 2026 announcing that they had appointed Ms Naisiae Paloshe Tobiko as the CEO of the 1st respondent. The petitioner avers that the 1st respondent responded to his letter on 26 June 2026, after the position had been filled, confirming that they had procured the services of the 2nd respondent to carry out the advertisement and recruitment for the CEO position. In this response, the petition was filed as a prospective applicant who was prevented from participating in the recruitment process due to the respondents' conduct. The Supreme Court judgment in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** has clarified the jurisdiction of the court vis-a-vis that of the High Court. The Supreme Court affirmed its jurisdiction over disputes challenging the constitutionality and legality of pre-employment processes when brought by prospective employees or applicants against prospective employers. The petition herein is rightly before the Court. The petitioner avers that though the petition raises constitutional questions, the same arise from a recruitment process undertaken by the 1st respondent in respect of a position the petitioner intended to apply for, thereby placing the matter before the Court is proper and there is jurisdiction. On the objections, the 1st respondent submitted that jurisdiction is everything. Without jurisdiction being conferred under the Constitution or statute, the court should stop, as held in **Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] EA.** The jurisdiction of the court is defined by the Supreme Court in **Republic v Karisa Cheng & 2 others, Petition No. 5 of 2025,** which holds that the court has jurisdiction under Article 162(a) and 165(5), which allow the court to hear employment disputes and prohibit the High Court from addressing such matters. In this petition, the petitioner pleaded that his case is premised under Articles 2, 22 and 258 of the Constitution. His case is that the petitioner is a public-spirited citizen who brings the petition in his own name, in the public interest, and in defence of the Constitution. The court has jurisdiction under Article 162(2)(a) of the Constitution to hear employment and labour relations disputes. However, under Article 165(3) of the Constitution, the High Court has exclusive jurisdiction to hear constitutional petitions. The distinction under Article 165(5) of the Constitution is that the High Court should not hear disputes within the court's jurisdiction under Article 162(2) of the Constitution. Hence, the provisions of Article 165(5) must be read with Section 12 of the Employment and Labour Relations Court Act, as held in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR).** The petitioner’s designation as a litigator in the public interest removes him from the court's jurisdiction. He is not among the relationships outlined by the Supreme Court in the judgment cited above. The court lacks jurisdiction to hear and determine the matter herein, and the matter should be dismissed with costs. The petitioner submitted that the objections by the 1st respondent fail the threshold under **Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] EA.** To determine the objections as outlined, the court needs a call for evidence. The pleadings on their own cannot exhaustively address the objections. Indeed, Article 162(2) of the Constitution gives the court jurisdiction to hear employment and labour relations disputes. When interpreting section 12 of the Employment and Labour Relations Court Act, the Supreme Court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** set out with clarity that a prospective employee for employment with a prospective employer should litigate before the court. Hence, the relationships outlined under section 12 of the Employment and Labour Relations Court Act are not exhaustive. The petition challenges the non-provision of information to the petitioner in his quest to seek employment from the 1st respondent. The delay in response, the non-provision of necessary information and eventual recruitment without his participation place the current petition properly before this court. The objections should be dismissed to allow the court to hear the petition on merit. **Determination** The petitioner raises relevant and fundamental questions. His case is that, following an advertisement posted in the print media on 15 May 2025 for the recruitment of the CEO of the 1st respondent, the process being conducted by the 2nd respondent, he wrote on 25 May 2026 seeking to know the identity of the 2nd respondent in connection with recruitment for a constitutional commission. As a prospective applicant for the position, he requested that the identity of the 2nd respondent be disclosed. The objections by the 1st respondent apply the provisions of articles 165(3) and (5) and articles 162(2) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act. Under article 165(3) of the Constitution, the High Court is allowed exclusive jurisdiction to hear constitutional petitions. Under article 165(5), the High Court is precluded from hearing disputes arising within the jurisdiction of specialised courts under article 162(2) of the Constitution. In **Republic v Chengo & 2 others [2017] KESC 15 (KLR)** this position was clarified by the Supreme Court where it was held: *… We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.* The Supreme Court further held: *… From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from article 165(5) of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, which prohibits the High Court from exercising jurisdiction in respect of matters “ reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in article 162(2).* Therefore, although the High Court has jurisdiction to hear constitutional petitions, such mandate does not extend to constitutional petitions referred under the jurisdiction of a specialised court in terms of articles 162(2) and 165(5)(b) of the Constitution. For the court, the High Court in **United States International University v Attorney-General [2012] eKLR** transferred the petition seeking to enforce an employment and labour relations dispute to the court on the appreciation that the High Court lacked the requisite jurisdiction. In this case, the petition’s definition places him against the emerging jurisprudence from the Supreme Court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)**. In addressing who should file a constitutional petition before the court, the Supreme Court held that those excluded included: *The 1st to 7th respondents described themselves in the High Court Petition as human rights activist, patriotic citizens of Kenya, law-abiding citizens, public- spirited individuals, and human rights defenders. They did not petition the High Court on behalf of any of the applicants to the positions of CEO or MD of the four parastatals. We reiterate, they were acting in the public interest.* Under paragraph (2) of the Petition, the petitioner states: *The petitioner is a public-spirited citizen of the Republic of Kenya who brings this petition in his own name and in the public interest and defence of the Constitution of Kenya, 2010.* The petitioner seeks to rely on paragraph (9) of the petition to assert that it is filed in his capacity as the prospective employee of the 1st respondent. However, his pleadings do not disclose such fact. His introduction is clear to the extent that he was filing the instant petition in the public interest. As stated above, the petitioner raises a very important issue in his petition. Such relates to the 1st respondent being a constitutional commission and the recruitment process being conducted by the 2nd respondent without disclosing the identity thereof. Under Article 10 of the Constitution, the public, state agencies, and non-state actors are bound by the values and principles set forth therein. Although the petition is filed in the public interest, the core issues addressed by the petitioner ordinarily for the court to address in terms of articles 162(2)(a) and 165(5)(b), however, the court is bound under the judgment by the Supreme Court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR).** I must down my tools thus guided. On costs, the petition is filed on good foundation. However, on the jurisprudence cited above, there is no jurisdiction. **The petition is struck out. Each party shall bear its costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**