Mohamed & another v Secretary, Mandera County Public Service Board & 2 others (Employment and Labour Relations Petition E008 of 2023 & Employment and Labour Relations Cause E059 of 2023 (Consolidated)) [2025] KEELRC 652 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear a public-interest challenge to a county worker's retirement extension, and ordinary residents have standing to sue.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly taken as a pure point of law
The objection was properly taken as it raised pure points of law requiring no interrogation of facts
Applying the Mukisa Biscuit test and the IEBC v Jane Cheperenger observations, the court found the three points raised were pure points of law. Determining them would not require ascertaining facts or exercising judicial discretion, so the objection was properly before the court as a preliminary matter.
Whether the petitioners had locus standi under Article 258 of the Constitution
The petitioners, as residents of Mandera County acting in the public interest, had locus standi under Article 258
Article 258 grants every person the right to institute proceedings claiming constitutional contravention, including in the public interest. Section 12 of the ELRC Act is not exhaustive and predates the 2010 Constitution, so it must be read in harmony with Article 258, which relaxed the restrictive pre-2010 locus standi requirements.
Whether the ELRC has jurisdiction over the constitutional petition concerning extension of service beyond retirement age
The court has jurisdiction because retirement is an essential aspect of employment and the petition raises a constitutional issue relating to employment and labour relations
The jurisdiction of the ELRC should be given a broad and liberal reading having regard to the ELRC Act, the Employment Act, the Labour Relations Act, the Constitution and progressive precedents. It suffices that the constitutional litigation relates to an employment or industrial matter; retirement falls squarely within that field, defeating the objection founded on the absence of an employer-employee relationship with the petitioners.
Legal principles established
#- Section 12 of the Employment and Labour Relations Court Act is not an exhaustive list of persons who may sue and must be read subject to Article 258 of the Constitution, which relaxed the doctrine of locus standi
- The ELRC has jurisdiction over constitutional petitions where the matter relates to employment and labour relations issues; retirement is an essential aspect of employment
Court orders
#- 1.Declaration that the preliminary objection is properly taken but fails on jurisdiction and locus standi
- 2.Holding that the Court has jurisdiction to hear and determine the petition
- 3.The petition to be placed before any Judge of the Employment and Labour Relations Court, Judicial Review and Labour Rights Division, Nairobi, for directions on further proceedings
- Jurisdiction invoked
- Article 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & another v Secretary, Mandera County Public Service Board & 2 others (Employment and Labour Relations Petition E008 of 2023 & Employment and Labour Relations Cause E059 of 2023 (Consolidated)) [2025] KEELRC 652 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition dated 19th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/652/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.