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ELRCDismissedPetition dated 22nd October 2024 (ELRC, Nairobi)

Suyianka & another v Attorney General & 4 others (Employment and Labour Relations Petition E171 of 2024) [2025] KEELRC 1537 (KLR)

Employment and Labour Relations Court
28 May 2025
6,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a challenge to staff changes after the Deputy President's impeachment, because the affected officers' contracts were tied to his tenure.

What this practically means

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Executive summary

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By a petition dated 22nd October 2024, the Petitioner challenged the alleged directive requiring 108 public officers serving in the Office of the Deputy President to proceed on compulsory leave following the impeachment of Deputy President Rigathi Gachagua on 17th October 2024. The Petitioner sought declarations of violations of Articles 27, 28, 29, 41, 47, 50(1), 232 and 236 of the Constitution and an order of certiorari to quash a decision said to have been made on 19th October 2024, plus costs on public interest grounds. The Respondents opposed, denying that any officers were sent on compulsory leave, and the 2nd Respondent (Public Service Commission) explained the two categories of staff - permanent and pensionable officers who remain in office, and contract officers serving the personal tenure of the office holder whose contracts terminate with the tenure. The court framed four issues: locus standi, jurisdiction, constitutional breaches, and remedies. It held the Petitioner had locus standi under Article 22(1) and that the ELRC had jurisdiction, applying the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees. On the merits, the Petitioner exhibited appointment letters for only 61 of the 108 officers; those contracts were local agreement terms expressly pegged to the tenure of the Deputy President. The contracts of the remaining 47 officers could not be ascertained. Finding no constitutional infringement, the court dismissed the entire petition on 28th May 2025 with no order of costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioner herein has locus standi to institute this petition.
  2. 2.Whether this court has jurisdiction to handle this petition.
  3. 3.Whether the Respondents committed any constitutional breaches as submitted by the Respondents.
  4. 4.Whether the Petitioners are entitled to the remedies sought.

Key legal issues

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01

Locus standi of the Petitioner to file the petition in public interest

Holding

The Petitioner has locus standi under Article 22(1) of the Constitution.

Reasoning

Article 22(1) grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. The court found this Article clear and held the Respondents' objection to the Petitioner's standing was without basis and was disregarded.

p. 10
02

Jurisdiction of the ELRC over the petition

Holding

The court has jurisdiction; the SCOK has held ELRC jurisdiction extends beyond employer-employee disputes.

Reasoning

Relying on the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees, the court held that its jurisdiction covers constitutional validity issues in employment and labour matters beyond employer-employee disputes. The petition concerns termination of contract employees in the public service, so nothing precluded the court from hearing it.

p. 11
03

Whether constitutional breaches were committed against the affected public officers

Holding

No constitutional infringements were meted against the 108 officers; the exhibited 61 officers were on local agreement contracts tied to the tenure of the Deputy President, and the contracts of the remaining 47 could not be ascertained.

Reasoning

The Petitioner exhibited only 61 appointment letters out of the 108 officers cited. Those 61 were junior officers on local agreement terms expressly tied to the tenure of H.E. Rigathi Gachagua, who was impeached on 17th October 2024. Having signed agreements to serve during that tenure, they cannot derogate from it. The contracts of the other 47 could not be ascertained, so no unfair termination could be determined.

p. 12
04

Entitlement to remedies, including certiorari

Holding

The remedies were refused; the decision of 19th October 2024 sought to be quashed was not produced and the petition failed on its merits.

Reasoning

Certiorari cannot issue in vacuum; the decision sought to be quashed must be produced in court. The Petitioner attached a memo dated 18th October 2024 whose authenticity was in question, but did not seek to quash it. With no proved infringement and no identifiable decision to quash, the declaratory and quashing orders could not be granted.

p. 12

Legal principles established

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  • Every person has locus standi under Article 22(1) to institute proceedings alleging infringement or threatened infringement of a constitutional right.
  • The jurisdiction of the ELRC extends beyond employer-employee disputes to constitutional questions affecting employees in the public service.
  • A party who signs a contract expressly pegged to the tenure of an office holder cannot later derogate from that fact when the tenure ends.
  • A petitioner alleging violations on behalf of named officers must produce their contracts of employment; without them the court cannot determine whether they were unfairly treated.

Court orders

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  1. 1.The entire petition is dismissed.
  2. 2.There shall be no order of costs (each party to bear their own costs).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 22 of the Constitution; jurisdiction of the ELRC in employment and labour matters per Kenya Tea Growers Association v NSSF Board of Trustees (SCOK Petition No. E002 of 2023)

Relief refused

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Declarations of violation of Articles 27, 28, 29, 41, 47, 50(1), 232 and 236 of the Constitution

No constitutional infringement was established; the officers exhibited were on contracts pegged to the tenure of the former Deputy President, and contracts of 47 of the 108 officers were not produced

p. 12

Order of Certiorari to quash the decision/resolution of 19th October 2024

No decision of 19th October 2024 was produced; the memo relied on was dated 18th October 2024 and its authenticity was in question

p. 8

Each party to bear their own costs as sought on public interest grounds

The petition was dismissed with no order of costs

p. 12

Costs

There shall be no order of costs (each party to bear their own costs).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Article is clear that every person has locus to institute proceedings alleging infringement or threatened infringemenht of a constitutional right.
p. 10Locus standi under Article 22(1)
The SCOK made a determination that the jurisdiction of this court extends beyond employeremployee disputes so long as it afiects a wider variety of employees.
p. 11Jurisdiction of the ELRC
It is clear that the said 61 oficers were employed on local agreement terms with a provision that the contract was pegged to the tenure of ofice of the Deputy President.
p. 11Nature of the officers' contracts
It is also clear that the oficers in question signed the agreement agreeing to serve during the tenure of the former Deputy President and therefore they cannot derogate on this fact.
p. 12Estoppel by contract terms
The contracts of the 47 cannot be ascertained and therefore this court cannot determine if they were unfairly terminated or not.
p. 12Evidential burden on the petitioner
The entire petition lacks merit and is hereby dismissed. There shall be no order of costs.
p. 12Final orders / disposition

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the internal memo relied upon - 19th October 2024 in the relief sought, but 18th October 2024 in the pleadings and submissions.

minor

The number of affected officers is inconsistent within the record - the petition cites 108 officers while some orders reportedly referenced 76 persons.

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, "Suyianka & another v Attorney General & 4 others (Employment and Labour Relations Petition E171 of 2024) [2025] KEELRC 1537 (KLR)", Case Analysis (2025). Petition dated 22nd October 2024 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1537/eng@2025-05-28

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