https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2430

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION ELRC PETITION NO. E182 OF 2026 IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 22(1), 23, 73, 174, AND 178 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE VALIDITY OF THE OCCUPANCY OF THE OFFICE OF THE SPEAKER OF THE ISIOLO COUNTY ASSEMBLY AND IN THE MATTER OF: CONSTITUTIONAL VIOLATIONS, LEADERSHIP IMPASSE, AND PROTECTION OF PUBLIC FUNDS FROM UNLAWFUL ADMINISTRATION BETWEEN EBRAHIM SAENAS ………………….…………………………………………………..PETITIONER/APPLICANT AND ABDULLAHI JALDESA BANTICHA (SUED AS PURPORTED SPEAKER).………………………………………………………….1ST RESPONDENT THE CLERK, ISIOLO COUNTY ASSEMBLY ………………………………………………..2ND RESPONDENT THE ISIOLO COUNTY ASSEMBLY SERVICE BOARD……………………………...3RD RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING (On Notice of Preliminary Objection dated 23rd June 2026 by the Respondents) 1. The petitioner, vide petition dated 28th May 2026 against the respondents, sought for the following relief- 2. A declaration that the 1st Respondent's assumption and continued execution of the administrative, legislative, and financial roles of the Office of the Speaker of the Isiolo County Assembly, amidst active legal disputes and procedural challenges, is unlawful, unconstitutional, and a violation of Articles 10, 73, and 178 of the Constitution. 3. A permanent injunction/restraining order prohibiting the 1st Respondent from performing any administrative, executive, or financial duties attached to the Office of the Speaker, including but not limited to chairing the meetings of the 3rd Respondent (The County Assembly Service Board), signing off on assembly expenditure, or executing official appointments. 4. A restraining order prohibiting the 1st Respondent from entering the chambers or presiding over any legislative sessions or committee debates of the Isiolo County Assembly until the question of the validity of the leadership structure is definitively resolved. 5. An order directing the 2nd Respondent (The Clerk) to lock out the 1st Respondent from all electronic and physical financial authorization platforms belonging to the Isiolo County Assembly. 6. An order directing that during the subsistence of the restraining orders against the Ist Respondent, the Deputy Speaker or a designated Member of the County Assembly chosen under Article 178(2) (b) shall discharge necessary, urgent house roles to ensure public service delivery does not stall. 7. Any other or further relief that this Honorable Court may deem just and fit to grant in the circumstances to protect public interest and the rule of law. 8. An order that the costs of this Petition be borne by the 1st Respondent. 9. Concurrently, the petitioner filed an application by way of Notice of Motion of even date seeking the following substantive orders- 10. THAT this Honorable Court be pleased to issue a CONSERVATORY ORDER restraining the 1t Respondent from performing any administrative, executive, or financial duties attached to the Office of the Speaker of the Isiolo County Assembly, including but not limited to chairing meetings of the 3rd Respondent (The County Assembly Service Board), authorizing expenditures, or making institutional appointments, pending the inter-parties hearing of this Application. 11. THAT this Honorable Court be pleased to issue a CONSERVATORY ORDER restraining the 1st Respondent from presiding over any legislative debate, session, or committee of the Isiolo County Assembly where critical constitutional timelines or budgetary processes are being voted upon, pending the final determination of the main Petition. 12. THAT this Honorable Court be pleased to issue an INTERIM ORDER directing the 2nd Respondent (The Clerk) and the 3rd Respondent to recognize the Deputy Speaker or any other member elected under Article 178(2) (b) of the Constitution for all routine administrative approval functions, to prevent public service paralysis pending the determination of the main Petition. 13. THAT the costs of and incidental to this Application be provided for. 14. The grounds of the application were as follows- 15. THAT the Applicant has established a strong prima facie case with a high probability of success, showing that the 1stRespondent's assumption of the Office of the Speaker violates Article 178 of the Constitution and the relevant County Assembly Standing Orders. 16. THAT the 1st Respondent is currently executing critical administrative functions and financial approvals. If found to be unlawfully in office later, all public funds spent, contracts signed, and appointments made under their hand will be illegal, causing unrecoverable loss to the taxpayers of Isiolo County. 17. THAT the public interest tilts heavily in maintaining constitutional purity. It is safer to lock out a disputed individual from administrative machinery while allowing the Assembly's statutory operations to be ran by neutral, undisputed entities like the Deputy Speaker or the Clerk. 18. THAT the balance of convenience favors the freezing of the 1st Respondent's administrative executive powers. It does not stop the Assembly from working; it only stops a contested individual from making binding decisions until the Court verifies his legal status. 19. The petitioner swore an affidavit dated 28th May 2026 in support of the application. 20. The respondent in response, filed a Notice of Preliminary Objection dated 23rd June 2026 as follows- 1. The Petition and the Applicant’s Application dated 28th May 2026 are fatally incompetent, misconceived, and bad in law as the issues raised therein are res judicata within the meaning of Section7of the Civil Procedure Act, Cap 21 Laws of Kenya. 2. The questions touching on the legality of the election, gazettement, occupation of office, de-gazettement, tenure, and status of the Speaker of the Isiolo County Assembly, which constitute the substratum of the present proceedings, were directly and substantially in issue in Milimani ELRC Petition No. E139of2025 – Hon. Abdullahi Jaldesa Banticha v Government Press & 15 Others, between parties litigating under the same title or privies thereto, and were heard and finally determined by a court of competent jurisdiction. 3. The Petitioner is, in effect, inviting this Honourable Court to sit on appeal over a matter already conclusively determined, thereby offending the doctrine of finality in litigation and undermining the authority of judicial determinations. 4. This Honourable Court lacks jurisdiction to entertain and determine the Petition as framed, the dispute herein being one that relates to the election and occupation of the office of Speaker of a County Assembly, which is a constitutional and governance issue falling outside the jurisdiction donated to this Court under Article 162(2)(a) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011. 5. There exists no employer–employee relationship between the Petitioner and the Respondents capable of invoking the jurisdiction of this Court under employment and labour relations law, the Speaker of a County Assembly being a constitutional office holder elected under Article 178 of the Constitution and not an employee within the meaning of the Employment Act, 2007. 6. That the Petition and the Application dated 28th May 2026 are frivolous, vexatious, and otherwise an abuse of the process of this Honourable Court, as they seek to relitigate settled issues and improperly invoke the jurisdiction of this Court, and ought therefore to be struck out with costs to the 1st, 2nd and 3rd Respondents. 21. The court issued directions that the Notice of Preliminary Objection be canvassed by way of written submissions. Decision 1. The court established issues for determination in the objection – 2. Whether the petition was res judicata. 3. Whether the court had jurisdiction. Whether the petition was res judicata. 1. The 2nd,3rd and 4th respondents stated that the Petition and the Applicant’s Application dated 28th May 2026 are fatally incompetent, misconceived, and bad in law as the issues raised therein are res judicata within the meaning of Section7of the Civil Procedure Act, Cap 21 Laws of Kenya. That the questions touching on the legality of the election, gazettement, occupation of office, de-gazettement, tenure, and status of the Speaker of the Isiolo County Assembly, which constitute the substratum of the present proceedings, were directly and substantially in issue in Milimani ELRC Petition No. E139 of 2025 – Hon. Abdullahi Jaldesa Banticha v Government Press & 15 Others, between parties litigating under the same title or parties thereto, and were heard and finally determined by a court of competent jurisdiction. That the Petitioner is, in effect, inviting this Honourable Court to sit on appeal over a matter already conclusively determined, thereby offending the doctrine of finality in litigation and undermining the authority of judicial determinations. The respondent relied on the Court of Appeal decision in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2015] eKLR -“From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally (see Karia & Another v the Attorney General and Others [2005] 1 EA 83.” 2. Conversely, the petitioner submitted that the locus classicus on preliminary objections remains Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, where the Court held:-"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." That in the present case the Respondents are inviting this Court to delve into a heavily contested factual matrix-specifically, the status of the Speaker's election, the competing claims of tenure, and the effects of Milimani ELRC Petition No. E139 of 2025 where the court must look at evidence outside the pleadings to ascertain facts, a Preliminary Objection is incompetent and must fail. That it is trite that litigation must come to an end. 3. On whether the instant petition is res judicata in view of the judgment in Nairobi ELRC Petition No. E139 PF 2025 Hon Abdullahi Jaldesa Banticha v Governmnet press and another with interested parties as Hon Koto and the Clerk of Isiolo County Assembly the court applied the decision by the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2015] eKLR “From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally (see Karia & Another v the Attorney General and Others [2005] 1 EA 83.” 4. Justice Wasilwa, in judgment delivered on the 5th May 2026 in the Nairobi ELRC Petition No. E139 PF 2025 Hon Abdullahi Jaldesa Banticha v Government press and another with interested parties as Hon Koto and the Clerk of Isiolo County Assembly, the petition was by the 1st respondent and sought to restrain the Members of the Isiolo County Assembly from removing him from office as the Speaker. The court, having heard the dispute on merit, held as follows as relates to the holder of the office of Speaker of the Isiolo County Assembly at paragraph 126 –‘126 Having considered all the averments, it is clear that the petitioner was gazetted as Speaker of Isiolo County Assembly on 27/6/25. This Court has not been presented with any other gazette notice that is in place purporting to degazette the petitioner and the one presented has been denied by the respondents as being a nullity. There is also no indication that there was any motion for removal of the petitioner as speaker of Isiolo County which has been passed by the Assembly.’ The court finds that it has decided with finality that the 1st respondent is the gazetted speaker of the Isiolo County Assembly. The court is functus officio on the issue. It cannot thus issue any order to restrain the performance of the 1st respondent as the lawful speaker. The petition is res judicata. On whether the court has jurisdiction 1. The petition seeks for the court to intervene in the operations of the Isiolo County Assembly and the role of the Speaker. The petitioner is not an employee and neither does he represent any person purporting to be the Speaker. He comes purely in public interest. Such disputes are outside the court’s jurisdiction. The Court upheld the decision of the Supreme Court of Kenya in [**Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/50/eng%402026-07-03) **where the court observed-‘** As we conclude on this aspect of the appeal, we restate our determination at the beginning of this judgment that the appeal has been brought as of right under Article 163(4)(a) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution). The question being, whether the Court of Appeal properly interpreted and applied the relevant provisions of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) in arriving at the determination in the impugned judgment; namely whether the 1st to 7th respondents qualified as parties in terms of Section 12 of the ELRC Act, or the other written laws. Did they petition the High Court as employees/employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment? No. Not in any of those capacities. 73.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. 74.At paragraphs 30, 31, and 32 of the Petition, they have specifically described the capacity in which they moved the High Court, thus:“B. Locus Standi30.That The Petitioners institute this Petition on the strength of Article 3(1) which provides that every person has an obligation to respect, uphold and defend [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya 2010;31.That The Petitioner is a person envisaged under Article 22(1) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) Article which states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has - 20 been denied, violated or infringed, or is threatened.32.That The Petitioner bring this Petition on their pursuant to article 22(2)(c) which states that in addition to a person acting in their own interest, court proceedings under clause (I) may be instituted by person acting in the public interest”. (sic) 75.The 1st to 7th respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalization and discrimination of women and people with disability. Nowhere do they plead on behalf of those who applied for the positions of CEOs or MDs and were not successful. The respondents moved the High Court for the vindication of the alleged breach of specified constitutional rights. The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution).’ applying the foregoing decision I find the court has no jurisdiction over the petition. The court also lacks jurisdiction to intervene on political wrangles before the County Assembly. 1. In the upshot, the Notice of Preliminary Objection dated 23rd June 2026 by the respondents is upheld. The petition and the notice of motion are struck on the basis of res judicata and, further, for lack of jurisdiction. 2. The petitioner filed the petition in the public interest. Each party to bear own costs in the matter. 3. The file is marked as closed. 4. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner/Applicant: absent Respondents: Sandoka h/b Echesa