Mboya v Mbithi & another; Chief of Staff & Head of Public service & 4 others (Interested Parties) (Petition E032 of 2025) [2025] KEELRC 1338 (KLR)
The bottom line
#Kenya's Employment Court dismissed a bid to block East Africa Portland Cement from selling its land, ruling land-disposal disputes belong in other courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court lacks jurisdiction over the notice of motion dated 03.04.2025 because the subject matter is the alleged sale/disposal of land, a matter for the Environment and Land Court and the Public Procurement Administrative Review Board
- 2.Whether the 5th interested party is an imposter masquerading as Acting Managing Director of the 2nd respondent
- 3.Whether the application is competent given the absence of a correlated final prayer in the petition
Key legal issues
#Jurisdiction of the ELRC over a claim concerning disposal of a public body's land assets
The Court lacks jurisdiction; disputes over land disposal by a public body fall under the ELC Act and the PPAD Act, for the ELC and the PPARB respectively
The respondents and the 5th interested party argued that disposal of land by a public body is governed by the Public Procurement and Asset Disposal Act, the Land Act and their regulations, and that grievances arising therefrom lie with the Environment and Land Court and the Public Procurement Administrative Review Board, not the ELRC. The applicant advanced no material basis to defeat the preliminary objection, so the objection on jurisdiction was upheld.
Competency of an application whose interim prayer is the only substantive prayer and lacks a correlated final prayer in the petition
Such an application is misconceived and liable to dismissal
The only substantive prayer was an order pending the hearing and determination of the application, which would effectively lapse once the application was heard. Even after an inter partes hearing, no relief would survive. Additionally, the alleged cause of action (sale of land) was new and had no correlated final prayer in the petition, compounding the dismissal.
Whether the 5th interested party is an imposter acting as Managing Director
The 2nd respondent asserted he was duly appointed MD by letter dated 12.02.2025 and has capacity and authority; the Court did not make a finding, the application being dismissed on jurisdiction
The 2nd respondent's replying affidavit deponed that the 5th interested party was appointed Managing Director by letter dated 12.02.2025 and has not been terminated, revoked or annulled by any court, so he holds the office lawfully and is not a masquerader. The applicant did not substantively overcome the jurisdictional objection, so no merits finding was necessary.
Legal principles established
#- An application whose only substantive prayer would lapse upon hearing of the application, and which lacks a correlated final prayer in the main petition, is misconceived and liable to dismissal
- The ELRC lacks jurisdiction over disputes concerning disposal/sale of land by a public body, which fall to the Environment and Land Court and the Public Procurement Administrative Review Board
Court orders
#- 1.The preliminary objection dated 23.04.2025 is upheld
- 2.The notice of motion application dated 03.04.2025 is dismissed
- 3.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya as read with Section 12 of the Employment and Labour Relations Court Act (dispute found to fall instead under Article 162(2)(b) and Section 13(1) and (2) of the ELC Act)
Relief refused
#Temporary injunction restraining the 1st, 2nd respondents and 5th interested party from disposing of any assets of East Africa Portland Cement Company PLC
The Court upheld the preliminary objection on jurisdiction, the subject matter being the sale of land outside the Court's jurisdiction, and noted the application had no correlated final prayer in the petition
Costs of the application
Costs were awarded in the cause rather than to the applicant
Costs
costs in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the application is found to revolve around a new cause of action about sale of land outside the jurisdiction of the Court and after the full hearing of the case, there is no correlated final prayer in the petition
The misconception of the prayer operates to render the application liable to dismissal
In conclusion the preliminary objection is upheld and the application is hereby dismissed with costs in the cause
Issues in the judgment
#Case number/petition number not stated in the judgment text; parties identified only by ordinal numbers except the 2nd respondent
Costs order phrased as 'costs in the cause' on a dismissal, which is unusual phrasing but recorded verbatim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mboya v Mbithi & another; Chief of Staff & Head of Public service & 4 others (Interested Parties) (Petition E032 of 2025) [2025] KEELRC 1338 (KLR)", Case Analysis (2025). not stated in the excerpted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1338/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.