Ahenda v Chief Justice & 2 others (Judicial Review E216 of 2026) [2026] KEHC 10651 (KLR) (Judicial Review) (15 July 2026) (Ruling)

Ahenda v Chief Justice & 2 others (Judicial Review E216 of 2026) [2026] KEHC 10651 (KLR) (Judicial Review) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10651 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E216 of 2026 WM Musyoka, J July 15, 2026 Between Victor Ahenda Applicant and The Hon Chief Justice 1st Respondent The Judicial Service Commission 2nd Respondent and Innocent Odhiambo Muganda Interested Party Ruling 1.These proceedings were initiated by way of an ex parte chamber summons, dated 29th June 2026, seeking grant of leave to seek judicial review orders of certiorari and prohibition, and a declaration, with respect to the appointment of the interested party, as Chairperson of the Political Parties Disputes Tribunal. 2.The ex parte application was placed before me, in chambers, on 30th June 2026. I declined to grant the leave and stay orders sought, on the spot, and directed that the papers be served on the respondents and the interested party, for inter partes hearing on 8th July 2026. That approach was taken as a precautionary step, to avoid being misled, by affording the other parties an opportunity to present contrary evidence, in the event the material in the application was either misleading, or there was concealment of other important matter. 3.The matter came up for inter partes hearing, on 8th July 2026, as scheduled. Only Mr. Jama, Advocate, appeared, for the ex parte applicant. He informed me that he had served the other parties, and referred to an affidavit of service, sworn on 7th July 2026, by Mr. Dickson Ooko Giani. It indicated service through WhatsApp and email. I was satisfied with the service, upon a cursory perusal of the affidavit. I proceeded to grant the leave sought, and to give directions on service, and filing of responses, and to direct that the leave sought shall operate as a stay. I scheduled the matter for mention on 15th July 2026, for compliance and further directions. 4.Prior to that date, an application was lodged, under certificate of urgency, dated 9th July 2026, seeking the setting aside of the order of 8th July 2026, directing that the grant of leave do operate as stay. The said application, of 9th July 2026, was at the instance of the interested party. The interested party raised a number of issues, around the court not having jurisdiction, for the matter related to employment; the interested party had already taken up office, for he had been sworn on 3rd July 2026, and, upon being sworn in, the appointment had become effective, and did not require execution of an employment contract; he had not been served with the papers; he did not hold any other office; and the matter was sub judice Kiambu HC Constitutional Petition No. E056 of 2026. 5.When the matter came up for hearing on 15th July 2026, Mr. Muriu, Advocate, appeared for the applicant, and sought to have the application adjourned, on grounds of not having been served, and needing time to prepare to oppose the same. I declined that application, and allowed Mr. Muriu sometime, 20 or so minutes to prepare, given that much of what is raised in the application turns largely on points of law, and that, under Order 53 rule 1(4) of the Civil Procedure Rules, the issue of leave operating as stay is meant to be considered ex parte, and even where the aspect of stay is to be heard inter partes, the rules do not specifically prescribe the filing of evidence. 6.The application was eventually argued, with Mr. Nyamodi, Advocate, urging it for the interested party; Mr. Ogutu, Advocate, argued for the 1st respondent; Mr. Machira, Advocate, submitted for the 2nd respondent; and Mr. Muriu for the applicant. 7.Mr. Nyamodi argued the issues flagged in the application, being jurisdiction of the High Court over the matter of the appointment of the interested party, to chair the Political Parties Disputes Tribunal; the membership of the interested party in another statutory body, which would have meant him holding 2 public offices; service of the pleadings on the interested party; lack of locus standi, on the part of the applicant, to bring the judicial review proceedings; the matter of the judicial review proceedings being sub judice Kiambu HC Constitutional Petition No. E056 of 2026, which turns on the same issues; and the stay order being in the nature of a mandatory injunction. 8.Mr. Muriu opposed the application, and responded to each of the issues urged by Mr. Nyamodi. Mr. Ogutu and Mr. Machira did not oppose the application, associated themselves with the submissions by Mr. Nyamodi, and urged that, since the judicial review proceedings herein are founded on the same issues as Kiambu HC Constitutional Petition No. E056 of 2026, which was the first to be filed, I should consider ordering transfer of the instant matter to the Kiambu court, to be considered alongside the constitutional petition. 9.Let me start by considering the issue around service of the court papers. This is critical as I had initially directed that the initial papers, for leave, be served, so that I could consider the prayers for leave and stay after hearing all the parties. As indicated above, such an inter partes hearing is useful, for it often brings out facts and situations that the applicant might have not disclosed, which have a bearing on the matter. It appears and sounds to me, from the application, dated 9th July 2026, and the submissions by the respondents and the interested party, that a lot of the issues that have arisen would have been addressed on 8th July 2026, which was my intent when I declined to grant leave initially, before I had heard all the parties. 10.An affidavit of service, sworn on 7th July 2026, had been filed, for the purpose of the inter partes hearing scheduled for 8th July 2026, as proof of service, as had been directed on 30th June 2026. Mr. Nyamodi has poked holes on the proof of service, on the interested party, alleged in that affidavit. The interested party was allegedly not served via email, unlike the respondents, but via WhatsApp. Mr. Nyamodi has argued that the print-out, showing what was served, indicates a constitutional petition, yet no constitutional petition was filed herein, for what had been filed was a certificate of urgency, an ex parte chamber summons and a verifying affidavit. So that, even if it were to be taken that the service was proper, there would still be a problem, for what ought to have been served is not what the WhatsApp print-out demonstrates. 11.The document placed on record, to evidence service of the papers on the interested party, is a little troubling. The applicant should have taken the issue of service and proof of it a little more seriously, for where proof of service is shaky, there would always be the risk that any orders made, based on it, could be vacated. What is shown in the impugned affidavit of service, as served, is a copy of a document that was not filed herein, that is a constitutional petition. The writings on the documents exhibited are so vague as to be of little assistance, in terms of deciphering the exact nature of the documents alleged to have been served. I cannot, therefore, tell, even from a closer scrutiny of these papers, whether or not in fact service was effected on the interested party at all. In view of that, I would lean on the assertion by the interested party, that he was never served, and that he only accessed the documents from the court record, after getting to know, from social media, that some order had been made, affecting his appointment. 12.The conclusion to make, in the circumstances, would then be that there was no proper service of the court papers before the orders were made. What would be the consequence of that? Ideally, where proceedings are conducted and orders made on the basis of a defective service or no service at all, there would an incidence of a procedural defect, curable by the setting aside or vacating of the order made, based on those proceedings. In this case, the impugned orders could, as well, be made ex parte, in chambers, by dint of Order 53 rule 1(1)(4) of the Civil Procedure Rules. The proviso to rule 1(4) gives discretion to the court to consider an inter partes hearing, on both leave and stay, where the circumstances so require. The court may proceed to determine whether to grant leave and stay, regardless of whether the inter partes hearing happens. 13.In this case, the respondents and the interested party do not have issue with grant of the leave, but rather with the stay order. The reason why the issue of leave and stay was pushed to inter partes was so that the court gets a full picture of the circumstances, from all who are party to the matter, before the orders are made. That was why the other parties needed to be brought on board. The applicant either did not serve, or bungled the process, with the result that the objective for which the inter partes hearing was to be conducted was not achieved, and orders were made, without the court having benefited from the inter partes hearing. An order obtained under such circumstances would always be shaky; as there would be serious issues about fair hearing. Where it is established that the service was faulty, if there was service at all, the order, premised on that service ought to be vacated as a matter of right. That would be particularly so, where, as in this case, it emerges that there was material information, whether known to the applicant or not, which the other parties would have brought forth, and which would have changed the trajectory of the proceedings. The issues around the pendency of the constitutional petition before the Kiambu court and the recent decision of the Supreme Court, in SC Petition No. E030 of 2025, reported as Moi Teaching and Referral Hospital & 3 others vs. Gikenyi & 74 others [2026] KESC 50 (KLR), would be some of them. 14.Let me now move on to Moi Teaching and Referral Hospital & 3 others vs. Gikenyi & 74 others [2026] KESC 50 (KLR), for the issue raised there is on jurisdiction, and it is trite that without jurisdiction the court ought to down its tools. See Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1. Moi Teaching and Referral Hospital & 3 others vs. Gikenyi & 74 others [2026] KESC 50 (KLR) turned on recruitment and appointment of Chief Executive Officers and Managing Directors of State corporations, and the question was on which court, between the High Court and the Employment and Labour Relations Court, would have jurisdiction. In the end, the Supreme Court ruled that both the High Court and the Employment and Labour Relations Court have jurisdiction over constitutional petitions on such matters. The emphasis is that the Employment and Labour Relations Court would have jurisdiction to hear and determine constitutional petitions challenging the constitutionality or legality of pre-employment procedures and processes, covering such matters as advertisements of vacancies, shortlisting of candidates, interviews and selection processes. 15.However, I do not think that the decision in Moi Teaching and Referral Hospital & 3 others vs. Gikenyi & 74 others [2026] KESC 50 (KLR) helps the case for the interested party much, as it found that the High Court and the Employment and Labour Relations Court have concurrent jurisdiction, in constitutional matters. That decision does not interpret the law to mean that the Employment and Labour Relations Court has exclusive jurisdiction over constitutional petitions turning on recruitment and appointment issues. Furthermore, what is before me is not a constitutional petition matter, but a judicial review cause. 16.I would agree with Mr. Nyamodi, however, that the instant dispute is on employment and labour relations. Recruitment and appointment are about work and labour, which are largely employment issues. The interested party was not elected to the position, for elective positions are under a different regime, and they do not fall under employment and labour. However, any appointment position is subject to labour and employment terms. The process of recruitment, leading up to the appointment, would be an employment and labour relations issue. That being the case, it would fall under Articles 162(2) and 165(5) of the Constitution, which deprive the High Court of jurisdiction. Proceedings, challenging the recruitment and employment process, including raising issues around qualifications to appointment, ought to be placed before the court with the jurisdiction, which is the Employment and Labour Relations Court. Only constitutional petitions, turning on recruitment and appointment, may be entertained by the High Court; challenges via judicial review should be at the Employment and Labour Relations Court. 17.The other issue, which borders on jurisdiction, is locus standi. The interested party argues that the applicant has no legal standing to mount a judicial review application, with respect to the appointment of the interested party. It is submitted that he has not brought out any material, in his statutory statement, on how he is connected to or affected by the recruitment and appointment exercise of the interested party, to justify challenging it by way of judicial review. He says nothing about these factors, in his statutory statement and his verifying affidavit. He does not allege to have been one of the candidates, in the recruitment process, alongside the interested party, which would have clothed him with some standing, to challenge the process in the parameters required under sections 8 and 9 of the Law Reform Act, Cap. 26, Laws of Kenya, and Order 53 of the Civil Procedure Rules. 18.the Constitution allows any person, to file a constitutional petition to challenge recruitments and appointments of this nature, on constitutional grounds. Although judicial review orders are grantable in proceedings under Order 53 of the Civil Procedure Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules, the 2 processes are different. The constitutional proceedings, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, can be initiated by any person, and the proceedings would be anchored on constitutional issues. Judicial Review proceedings, under Order 53 of the Civil Procedure Rules, do not turn on constitutional questions, but target administrative actions, with a view to address the legality, rationality and procedural fairness of those actions. 19.To the extent that the applicant did not demonstrate, in his pleadings, a connection to the impugned recruitment and appointment process of the interested party, and did not demonstrate how it affected him, he lacked standing to challenge it, by way of judicial review. Perhaps, he would have been better off at the constitutional court. 20.Sub judice is another subject which borders on jurisdiction, for a court ought not entertain a matter similar to another before another court, between the same parties, and turning on the same issues. The argument is that the issues raised herein, and in Kiambu HC Constitutional Petition No. E056 of 2026, turn on the same issues, the validity of the recruitment and appointment of the interested party. The applicant counters that he is not party to Kiambu HC Constitutional Petition No. E056 of 2026. I have seen the pleadings, placed on record by the interested party, on the Kiambu matter. The 2 are different, in that, one was initiated as a constitutional petition, while the other is a judicial review cause. The other difference is that the applicant is not a party in one of them. The interested party and the respondents are, however, parties in both. The 2 causes turn on the same issue, they challenge the recruitment and appointment of the interested party, to the position of Chairperson of the Political Parties Disputes Tribunal. 21.Would the issue of sub judice arise? Yes, it would. The 2 causes turn on the same issue. It would not matter that the applicant is not in one of the suits, what would matter is the subject-matter, for once that issue is resolved by one of the courts, it would become moot. If both courts determine the matters separately, and arrive at different findings and holdings, that would shock and embarrass the system, and that would be undesirable. 22.If the applicant had properly served the interested party, so that he got an opportunity to be heard on 8th July 2026, no doubt, he would have brought forth all the issues that he raises in the application, dated 9th July 2026, and the outcome from the proceedings of 8th July 2026 would have been different. I am persuaded that a case has been made out, for grant of the orders sought in the application, dated 9th July 2026, and I hereby discharge and vacate the order, made on 8th July 2026, to have the leave granted operate as a stay, in terms of prayer 6 of the ex parte chamber summons, limited in the manner indicated in the order. 23.The application, dated 9th July 2026, only targets the stay order, and not the leave. I shall not make any orders with respect to jurisdiction and the lack of standing of the applicant, despite my findings and holdings above. However, on account of sub judice, I believe the matter herein should be placed before the court seized of Kiambu HC Constitutional Petition No. E056 of 2026, given that that cause was filed first. I shall order, as I hereby do, that the matter herein, in Milimani HCJR No. E216 of 2026, be transferred to the High Court at Kiambu, to be placed together with Kiambu HC Constitutional Petition No. E056 of 2026, for the Judge, seized of Kiambu HC Constitutional Petition No. E056 of 2026, to consider hearing the 2 matters together, or to make such orders as may appear fit and just in the circumstances. 24.Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 15TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Muriu, instructed by KNW Law Advocates LLP, Advocates for the applicant.Mr. Ogutu, instructed by the Office of the Chief Registrar of the Judiciary, for the 1st respondent.Mr. Machira, Advocate for the 2nd respondent.Mr. Nyamodi, instructed by VA Nyamodi & Company, Advocates for the interested party.