https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1489

Tana v Kenya Agricultural and Livestock Research Organization Board of Management & 6 others (Petition E177 of 2025) [2026] KEELRC 1489 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1489 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E177 of 2025 JW Keli, J May 22, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 23, 47, 73, 129, 232, AND 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 1(1), 2(1- 4), 3(1), 10, 24, 73, 75, 153(4) AND 232 OF THE CONSTITUTION AND IN THE MATTER OF ALLEGED VIOLATION OF RIGHTS AND FUNDERMENTAL FREEDOMS UNDER ARTICLES 27, 42(1), 47 AND 56 OF THE CONSTITUTION AND IN THE MATTER OF SECTIONS 5, 6, 7, 8, 9, AND 10 OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, 2015 AND IN THE MATTER OF THE KENYA AGRICULTURAL AND LIVESTOCK RESEARCH ORGANIZATION ACT, NO. 17 OF 2013 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE CONSTITUTION AND THE LAW IN THE RECRUITMENT AND APPOINTMENT OF DIRECTOR GENERAL AND DEPUTY DIRECTOR CROPS OF KENYA AGRICULTURAL AND LIVESTOCK RESEARCH ORGANIZATION Between Dr Paul Ochieng Tana Petitioner and The Kenya Agricultural and Livestock Research Organization Board of Management 1st Respondent The Cabinet Secretary, Ministry OfAgriculture and Livestock Development 2nd Respondent Principal Secretary, State DepartmentFor Agriculture, Ministry Of Agriculture and Livestock Development 3rd Respondent The Public Service Commission 4th Respondent The Hon Attorney General 5th Respondent and Dr Alice Murage 1st Interested Party Katiba Institute 2nd Interested Party Ruling 1.The Petitioner, asserted he was a citizen of the Republic of Kenya and a stakeholder in the agricultural research and development sector, and brings this Petition pursuant to Articles 22 and 258 of the Constitution of Kenya to vindicate the rule of law, defend the Constitution, and ensure adherence to principles of good governance, transparency, meritocracy, and public participation in the appointment of public officers. He filed a petition dated 15th December 2025 against the respondents seeking for the following relief-a.A declaration that the advertisement announcing the vacancy in the office of the director general and deputy director general crops of the Kenya Agricultural & Livestock Research Organization, which was published on Government advertisement agency, and Kenya Agricultural & Livestock Research Organization’s websites on 8th July, 2025 was irregular, unlawful and unconstitutional and therefore invalid, null and void ab initio.b.A declaration that the recruitment and appointment of the 1st Interested Parties to the positions of Deputy Director General, Crops, KALRO, is unconstitutional, unlawful, and therefore null and void ab initio.c.An order quashing the advertisement announcing the vacancy in the office of the director general and deputy director general crops of the Kenya Agricultural & Livestock Research Organization, which was published on Government advertisement agency, and Kenya Agricultural & Livestock Research Organization’s websites on 8th July, 2025.d.An order quashing the recruitment and appointment of the 1st Interested Parties to the positions of Deputy Director General, Crops, KALRO.e.An order directing the 1st Respondent, in strict compliance with the Constitution, the Public service commission human resource policies and procedures manual for the public service, May 2016, the Kenya Agricultural and Livestock Research Organization career progression guidelines (September 2017) and the Kenya Agricultural and Livestock Research Organization Act, to re-advertise and conduct a fresh recruitment process for the said positions.f.An order compelling each party to pay their Costs of litigating this Petition.g.Any other or further relief that this Honourable Court may deem just and expedient to grant in the circumstances. 2.The petitioner supported the petition vide his affidavit of even date. Response 3.The Hon Attorney General entered appearance for the 2nd, 3rd and 5th respondents and filed a Notice of Preliminary Objection dated 24th September 2025 and sought for the petition be struck out in limine/dismissed with costs, on the GROUNDS:-a.That this Honorable Court lacks the requisite subject matter jurisdiction to entertain the matter in light of the provisions of Article 162 of the Constitution of Kenya, 2010 as read with Section 12 of the Employment and Labour Relations Court Act.b.That the substratum of the Application and Petition do not disclose an employer employee relationship between the Applicant/Petitioner and the 2nd and 3rd Respondents.c.That the Applicant originated the Petition not as an employee of the 2 nd and 3rd Respondents.d.That no employer employee relationship had crystalized between the 1st Interested Party and the Respondents at recruitment stage hence this honorable court lacks the requisite jurisdiction to hear and determine the matter as was the Page 2 of 37 finding in the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others [2025] KECA 937 (KLR)e.That in light of the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others [2025] KECA 937 (KLR) court opined that, “clearly, bearing in mind the above definitions and the provisions of Section 12 of the ELRC Act which requires the existence of an employer employee relationship, it cannot be said that a person challenging the constitutional validity of a recruitment process like in this case falls within the definition of an employee…” This Honourable Court is thus precluded from exercising jurisdiction over this matter.f.That in light of the Court of Appeal decision stated herein, the High Court of Kenya holds the requisite jurisdiction to hear and determine the suit herein. 4.The 1st respondent entered an appearance and filed a replying affidavit sworn by Patricia Ngutu on the 6th Day of October 2025, and further filed on the same date a notice of preliminary objection seeking the petition to be struck out on the ground of lack of jurisdiction of the court. 5.The court consolidated the 2 preliminary objections and directed that they be canvassed first, by way of written submissions. The parties complied. 6.The court found the issue to be determined in the 2 preliminary objections to be whether the court had jurisdiction. Decision 7.The cause of action arose from the recruitment process for the position of Director General and Deputy Director General, Crops at KALRO. The petitioner alleged the recruitment was done contrary to the mandatory statutory requirements and established principles of fair recruitment, thereby undermining the principles of transparency, inclusivity, and adequate public participation as envisioned under Articles 10, 232, and 235 of the Constitution. The petitioner was not an applicant for the job but came to court challenging the recruitment in the public interest as a Kenyan citizen. 8.The jurisdiction of this court is as stated in Article 162(2)(a) of the Constitution -‘ 2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; Parliament, pursuant to the foregoing provision established the court under the Employment and Labour Relations Court Act, section 12, as follows: '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;(b)disputes between an employer and a trade union;(c)disputes between an employers' organisation and a trade unions organisation;(d)disputes between trade unions;(e)disputes between employer organizations;(f)disputes between an employers' organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer's organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.(2)An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.’’ 9.Conversely, the High Court under article 165 (3(b) of the Constitution is given jurisdiction as follows-‘(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;’ This jurisdiction is qualified to exclude the jurisdiction under 162(2)(a) of this Court. 10.The Supreme Court stated with finality that the Court had jurisdiction over constitutional petitions challenging the constitutionality of legislation and constitutional violations within the spectrum of employment and labour relations issues. The Supreme Court in Petition No. E004 Of 2023 As Consolidated With Petition No. E002 Of 2023- Kenya Tea Growers Association & 14 others v National Social Security Fund Board of Trustees(Koome; CJ & P, Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ) stated interalia in setting aside decision of the Court of Appeal-“[81] We now come to the specific question whether the ELRC correctly assumed jurisdiction to determine the constitutional validity of the NSSF Act 2013. Towards this end, we are persuaded by the appellants’ argument to the effect that the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act 2013, in holding that the matter before the ELRC did not emanate from an “employer-employee” dispute…….What were the appellants complaining about? From the proceedings as re-enacted in this Judgment, whether rightly or wrongly, they complained among others, about the burdensome nature of the new contributions to the scheme that had been introduced by the NSSF Act 2013. They complained about the enhanced powers of the Cabinet Secretary for Labour over the management of their Scheme. They complained about the legality of a Fund premised on an employer and employee relationship. They complained about the negative effect the new law would have on the existing Collective Bargaining Agreements (CBAs). [83] Can it be said that the parties herein are not among the disputants contemplated under Section 12(2) of the ELRC Act? Even where the Act stipulates that a complaint, application or suit may be lodged against the Cabinet Secretary for Labour or any office established by law for that purpose? Or that the nature of the dispute is not one that falls within the jurisdiction of the ELRC, even where, as in this case, both employers and employees, trade unions, and workers associations are decrying what they consider to be the adverse effect of a new law on their working conditions? We are in agreement with the Court of Appeal to the effect that this dispute did not arise strictly from an employer-employee relationship. But what about the other aspects of the dispute? What meaning is to be ascribed to the phrase “labour relations”?’ The court read the decision to mean that the petition must disclose employer's employee relations, employment disputes and fall in the realm of employment and relations for the court to have jurisdiction. Does the court have jurisdiction in a recruitment process challenged by a private citizen asserting public interest, and without a personal employment dispute? 11.The respondents relied on the Court of Appeal decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil AppealE107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR) (23 May 2025) (Judgment) where the court held there was no employer-employee relationship hence the court had no jurisdiction. The Court of Appeal held –‘The 1st to 7th respondents originated the petition not as employees of the four parastatals but as citizens seeking to enforce the Rule of law. There being no employer-employee relationship as required by Section 12 of the Act, we are persuaded that the issues raised in the petition fall within the jurisdiction of the High Court. Therefore, we find no reason to fault the learned judge for dismissing the objection based on this ground. As the High Court correctly noted, the grievance is not a dispute between employer and employee but rather an unconstitutional recruitment in contravention of the Constitution based on ethnic considerations and not meritocracy. In so finding, we are guided by the Supreme Court decision in the KTGA Case that: “ 79. In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute.’ I find the Moi Referral case cited above, on the jurisdiction of the court, fits in the instant case as the petitioner is not in employment relations with the respondent. He was not even an applicant for the impugned position. Had the Petitioner applied for the position and alleged discrimination in the recruitment process the court would have held that it had jurisdiction pursuant to section 5(3) of the Employment Act to wit- ‘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, marital 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.’(emphasis given). I uphold the decision of the Court of Appeal cited above to hold that I have no jurisdiction in the matter, as no apparent employer-employee relationship was disclosed in the dispute, as the petitioner had not applied for the job and was not an employee. 12.As to whether the respondents violated constitutional principles in the recruitment process, the court holds that the issue falls under Article 165 of the Constitution, the petitioner having no employment relations with the respondents and having come to court purely in the public interest to protect the Constitution. 13.The court upheld the preliminary objections by the respondent on ground of lack of jurisdiction. The petition is struck out for want of jurisdiction. This is public interest matter. No order as to costs. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF MAY, 2026.JEMIMAH KELIJUDGE.In the presence of:Court Assistant: OtienoPetitioner: Tana1st respondent- Wauna2nd 3rd and 5th Respondent: Bulowa holding brief Khaemba.