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ELRCOtherNot stated in the judgment (Petition dated 19th January 2023)· [2025] KEELRC 652 (KLR)

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)

Employment and Labour Relations Court
20 February 2025
2,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, residents of Mandera County, petitioned the Employment and Labour Relations Court challenging the approval of an extension of service by contract of the 3rd Respondent, a county employee, beyond the mandatory retirement age of sixty years, alleging violations of various constitutional articles. Together with an amended Notice of Motion, they sought conservatory orders restraining the 1st and 2nd Respondents from issuing a new service contract. The Respondents raised a preliminary objection contending that the court lacked jurisdiction under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, that the Petitioners lacked locus standi, and that the petition was an abuse of process. In a ruling on the preliminary objection, the court distilled three issues: whether the objection was properly taken, whether the court had jurisdiction, and whether the Petitioners had locus standi. Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held the objection was properly taken as a pure point of law. On jurisdiction, the court held that the ELRC's jurisdiction is broad, encompassing constitutional litigation relating to employment and labour relations; retirement is an essential aspect of employment. On locus standi, the court held that Article 258 of the Constitution relaxed the restrictive doctrine and that section 12 of the ELRC Act is neither exhaustive nor superior to the Constitution. The court upheld its own jurisdiction and directed that the petition be placed before a judge of the Judicial Review and Labour Rights Division in Nairobi for directions. No costs order was made and the substantive petition remains to be heard.

Key legal issues

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01

Whether the preliminary objection was properly taken as a pure point of law

Holding

The objection was properly taken as it raised pure points of law requiring no interrogation of facts

Reasoning

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.

p. 5
02

Whether the petitioners had locus standi under Article 258 of the Constitution

Holding

The petitioners, as residents of Mandera County acting in the public interest, had locus standi under Article 258

Reasoning

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.

p. 6
03

Whether the ELRC has jurisdiction over the constitutional petition concerning extension of service beyond retirement age

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the preliminary objection is properly taken but fails on jurisdiction and locus standi
  2. 2.Holding that the Court has jurisdiction to hear and determine the petition
  3. 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

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 23, 258
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 159
  • Employment and Labour Relations Court ActSection 12
  • County Governments ActSection 77
  • Employment Act
  • Labour Relations Act

Cases cited (14)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Nick Githinji Ndichu v Clerk Kiambu County Assembly and Another
    [2014] eKLR
  • Civil Appeal No. E136 of 2022 consolidated with Civil Appeal No. E137 of 2022
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Law Society of Kenya v Commissioner of Lands & 2 Others
    [2001] eKLR
  • BV Narayana Reddy v State of Karnataka
    (1985) Kan 99, 106
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Peter Ochara Anam & Others v Constituencies Development Fund Board & Others
    Kisii Petition No. 3 of 2010 (unreported) (2011) eKLR
  • International Centre for Policy and Conflict & 5 Others v Attorney General & 4 Others
    (2013) eKLR
  • Diana Kethi Kilonzo & Another v IEBC & 10 Others
    (2013) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR, Civil Application No. 36 of 2014
  • Okiya Omtatah Okoiti v Parliamentary Service Commission & another
    [2021] eKLR
  • Daniel N Mugendi v Kenyatta University & 3 Others
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court Act, 2011

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, "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.