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ELRCOtherNot stated in the judgment· [2025] KEELRC 592 (KLR)

Gikenye & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 592 (KLR)

Employment and Labour Relations Court
27 February 2025
BOByram Ongaya
2,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can hear challenges to State corporation board appointments because board members are public officers.

What this practically means

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Executive summary

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The petitioners, acting in person, challenged the appointment of the 1st, 3rd, 5th and 7th respondents as chairpersons and members of boards of State corporations being the 2nd, 4th, 6th and 8th respondents. A preliminary objection was raised on behalf of the 2nd, 6th, 8th and 9th respondents through the Attorney General, contending that the Employment and Labour Relations Court lacked jurisdiction under section 12(1) of the ELRC Act because the petitioners are not employees of the respondents and because appointments of board chairpersons and members under the State Corporations Act are not employment disputes, relying on the Court of Appeal decision in Rift Valley Water Services Board v Asanyo. The 10th respondent filed grounds of opposition, while the 1st, 3rd, 4th and 7th respondents supported the objection in submissions. The petitioners countered that the objection failed the Mukisa Biscuits test as it rested on contested facts. The court held that the objection was premised on the disputed fact of whether an employer-employee relationship exists, which could only be determined after a full hearing. On jurisdiction, the court held that State corporation board members are public officers in public employment within Article 260 of the Constitution, regulated by Article 232 and Chapter 6, and that the Employment Act is merely a floor that does not oust employment relationships founded on constitutional and other statutory provisions. Applying its previous decisions in Havi v JSC and Rukaria v Attorney General, and distinguishing the Asanyo directorship line of authority, the court dismissed the preliminary objection with costs in the cause and directed the parties to take directions towards expeditious hearing of the main petition.

Key legal issues

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01

Whether the preliminary objection raising lack of jurisdiction is a pure point of law

Holding

The objection was based on a disputed fact (existence of an employer-employee relationship) and therefore failed the Mukisa Biscuits test.

Reasoning

Respondents submitted that appointed board members were not employees as they earned no wage or salary. The court found that whether they earn a wage or salary is a matter for determination after full hearing and is contested on the pleadings, so the objection rests on disputed facts and cannot succeed as a preliminary objection.

p. 4
02

Whether appointment of State Corporations board members falls within the ELRC's jurisdiction

Holding

Yes - board members are public officers in public employment under Article 260, regulated by Article 232 and Chapter 6 of the Constitution, so the dispute falls within the court's jurisdiction.

Reasoning

The court reasoned that the case is about appointments to boards of State corporations, and board members are public officers within Article 260, bound by public service employment laws, the values and principles of public service under Article 232 and Chapter 6 on leadership and integrity, the Public Officer Ethics Act and the Official Secrets Act. It followed its own decisions in Havi v JSC and Rukaria v Attorney General that all public and state officers are servants of the people.

p. 7

Legal principles established

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  • Members of State Corporations boards are public officers in public employment within Article 260 of the Constitution, and the ELRC's jurisdiction is not confined to relationships governed by the Employment Act, 2007.
  • The Employment Act, 2007 applies as a floor of terms and does not oust employment or work relationships founded on other lawful provisions.

Court orders

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  1. 1.The preliminary objection is dismissed with costs in the cause
  2. 2.Parties to take directions towards the expeditious hearing and determination of the main petition
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12(1) and (2) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gikenye & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 592 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/592/eng@2025-02-27

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