Kamakia v KE743 Nkondi Child Development Centre (CDC) & another (Judicial Review E003 of 2025) [2025] KEELRC 2374 (KLR)
The bottom line
#Kenya's Employment Court struck out a mixed-up church employment case, ruling you can sue private bodies but must follow the correct court procedure.
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 objection passes muster.
- 2.Whether the objection has merits
Key legal issues
#Whether the preliminary objection met the Mukisa Biscuits threshold
The objection raised two pure points of law (absence of leave; justiciability of a private entity in judicial review) which met the threshold; issues of form (contradictory prayers, not suing in the name of the Republic) did not.
The court applied the classic Mukisa Biscuits test: a preliminary objection must be a point of law argued on the assumption that the facts pleaded are correct. It found that the leave requirement and the applicability of judicial review to private entities were legal questions which, if successful, would dispose of the suit without evidence, whereas the contradictions between pleadings and the naming defect were merely issues of form.
Whether a private church is amenable to judicial review
The law has evolved so that private entities and workplace dealings may be subjected to judicial review or constitutional enforcement under Articles 22 and 258.
The court held that the 2010 Constitution incorporated labour rights and the right to fair administrative action in the Bill of Rights, expanding the scope of judicial review beyond public bodies under the Law Reform Act and Order 53. Alternatively, Articles 22 and 258 permit any person to petition for enforcement of rights. However, the correct procedural route must still be followed.
Compliance with procedural rules
The applicant, who pleaded a 'mongrel' of a constitutional petition, judicial review application and ordinary claim, did not comply with the ELRC Procedure Rules, 2024, the Mutunga Rules, or the leave requirement under Order 53.
The court emphasised that under Rule 10 of the ELRC Procedure Rules, 2024, judicial review must be instituted under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, which requires prior leave. Enforcement of constitutional rights requires a petition under the Mutunga Rules or a claim. The applicant followed none of these routes properly, warranting striking out.
Legal principles established
#- A preliminary objection succeeds only if it raises a pure point of law capable of disposing of the suit without ascertaining facts or exercising discretion.
- Since the Constitution of 2010, private entities and their workplace dealings may be subjected to judicial review or constitutional petition under Articles 22 and 258.
- Rules of procedure must be adhered to by litigants originating proceedings, including obtaining leave where judicial review is invoked.
Court orders
#- 1.The preliminary objection by the respondent is upheld.
- 2.The suit (the judicial review application and interlocutory motion) is struck out with costs.
- 3.The applicant is at liberty to file proper pleadings afresh.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution read with the ELRC Procedure Rules, 2024 and Order 53 of the Civil Procedure Rules (procedural basis for judicial review proceedings)
Relief refused
#The applicant's prayer for the preliminary objection to be dismissed with costs and for the suit and motion to proceed
The applicant failed to obtain leave for judicial review and did not comply with the ELRC Procedure Rules, 2024 and the Mutunga Rules, so the objection on points of law succeeded.
Costs
Suit struck out with costs to the respondents.
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.
Consequently, on the basis of the two issues of law, I hold that the preliminary objection passes muster.
it is now possible to subject private entities and their dealings in work place to judicial review as known under the Law Reform Act and Order 53 of the Civil Procedure Rules, or under the Constitution under Article 22 and 258.
Having said that, I must with sympathy uphold the objection by the respondent and strike out the suit herein with costs. However, the applicant is at liberty to file proper pleadings afresh.
Issues in the judgment
#The suit appears to be styled as a judicial review application but the parties are referred to as petitioner/respondent in places; the court itself notes the pleadings are a hybrid, so party labels are inconsistent within the judgment.
The formal case number of the suit is not disclosed anywhere in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamakia v KE743 Nkondi Child Development Centre (CDC) & another (Judicial Review E003 of 2025) [2025] KEELRC 2374 (KLR)", Case Analysis (2025). Not stated in ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2374/eng@2025-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.