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ELRCDismissedNot stated in the judgment· [2025] KEELRC 247 (KLR)

Ndengu & 13 others v County Public Service Board of Bungoma & 3 others (Constitutional Petition E005 of 2024) [2025] KEELRC 247 (KLR)

Employment and Labour Relations Court
28 January 2025
3,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment Court in Bungoma refused to stop county recruitment interviews, ruling that conservatory orders suit public-interest cases, not private employment disputes.

What this practically means

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Executive summary

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The petitioners, periodic/short-term contract employees of the 4th respondent engaged through the 1st respondent, filed a petition on 24th October 2024 alleging constitutional violations (Articles 2, 3, 10, 19, 20, 24, 35, 41 and 47(2)) arising from unfavourable terms of service and from their omission from the shortlist for permanent and pensionable positions advertised on 2nd August 2024, with interviews set for 28th October 2024. Alongside the petition they filed an undated notice of motion seeking conservatory orders to stop the interviews, to restrain harassment or interference with their continued employment, to fast-track the petition, and costs in the cause. The respondents, through the county attorney, denied the petitioners' employment and explained the non-shortlisting on grounds that the petitioners were either over-qualified or under-qualified for the positions applied for. The court framed one main issue: whether conservatory orders should issue. Applying the Supreme Court's principles in Peter Gatirau Munya v Dickson Mwenda Kithinji, the court held that conservatory orders are public-law remedies suited to public-interest litigation and not private employment disputes. The court found the status quo uncertain since the interviews may already have concluded, rendering any order futile, and found no prima facie case. The petitioners, litigating in their private interests, had not proved current employment, and their grievances were compensable in damages under the Employment Act and related statutes. The application was denied in its entirety with costs in the petition. The petition itself remains pending, to be fast-tracked after pre-trial directions.

Key legal issues

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01

Whether conservatory orders should issue to stop the recruitment interviews pending hearing of the petition

Holding

The application was denied. The court could not ascertain the status quo and the applicants failed to establish a prima facie case; conservatory orders are public-law remedies unsuited to private employment interests absent demonstrated public interest

Reasoning

The court applied the Supreme Court's principles in Munya, distinguishing conservatory orders from interlocutory injunctions. It found conservatory orders belong to public law and public-interest litigation. The applicants, private individuals litigating personal employment interests, had not shown their cause extended to public interest. They also failed to prove current employment, and the court declined to micromanage the human resources function of public institutions. The uncertainty over the status quo, interviews possibly already concluded, rendered the order sought futile.

p. 7
02

Whether the dispute properly belongs before the constitutional jurisdiction of the ELRC or in ordinary employment causes

Holding

Absent demonstrated public interest or constitutional violation, employment disputes should be brought as ordinary causes under the Employment Act and related statutes, with remedies compensable in damages

Reasoning

The court observed that unless the employment relationship extends to a matter of public interest or a demonstrated constitutional breach, parties should file ordinary causes. Any wrongful termination or breach of the applicants' contracts could be compensated under statutory employment laws, meaning no irreparable harm justified constitutional conservatory relief. The court cautioned itself against descending into the arena of human resources management.

p. 7

Legal principles established

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  • Conservatory orders are public-law remedies granted on the inherent merit of a case bearing in mind public interest and constitutional values, and are more appropriate in public interest litigation than in private employment disputes
  • Constitutional petitions alleging violation of fundamental rights must plead the specifics of the alleged violations

Court orders

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  1. 1.The undated notice of motion filed in court alongside the petition is hereby denied and dismissed
  2. 2.Costs in the petition
Jurisdiction invoked
Original jurisdiction in employment and labour relations under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act; constitutional petition under Articles 23 and 258 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ndengu & 13 others v County Public Service Board of Bungoma & 3 others (Constitutional Petition E005 of 2024) [2025] KEELRC 247 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/247/eng@2025-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.