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ELRCOtherPetition dated 12th March 2025· [2025] KEELRC 2552 (KLR)

Elondanga & 4 others v DCC Navakholo Subcounty & 3 others; Barasa (Interested Party) (Constitutional Petition E008 of 2025) [2025] KEELRC 2552 (KLR)

Employment and Labour Relations Court
22 September 2025
DNDAVID NDERITU
2,238 words in judgment
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The bottom line

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A Kenyan court ruled an interested party cannot block a case about a chief's reappointment when no orders were sought against him.

What this practically means

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Executive summary

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The petitioners, residents of Matiha Sub-location who participated in the 2022/2023 interview for the position of assistant chief, filed a petition dated 12th March 2025 seeking an order of mandamus compelling the respondents to supply information on the recruitment and reappointment of the interested party, a declaration that the failure to supply information breached their rights under Articles 35(1) and 35(2) of the Constitution, and damages and costs. The petition followed an earlier ELRC matter in which the interested party's initial appointment was withdrawn after which he was nonetheless reappointed in February 2025. The interested party filed a preliminary objection dated 26th March 2025 contending that the court lacked jurisdiction under Articles 162 and 165(5)(b) of the Constitution and section 12 of the ELRC Act for want of an employment relationship, and that the petition was res judicata and an abuse of process. The court identified a single issue: whether the PO was merited. Holding that no orders were sought against the interested party and that he had filed no replying affidavit to substantiate the facts he advanced through submissions from the bar, the court found he lacked locus to raise the PO. Further, the respondents having filed no responses, the petitioners' facts stood uncontested, and the PO failed the Mukisa Biscuits threshold as it raised factual issues. The court dismissed the PO and awarded costs to the petitioners. The petition itself now proceeds to hearing as unopposed.

Key legal issues

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01

Locus of the interested party to raise a preliminary objection

Holding

The interested party had no locus to file the PO because no orders were sought against him; on this ground alone the PO fails.

Reasoning

The court observed that the PO was raised by the interested party against whom no orders were sought. He is not an active participant in the proceedings. His factual claims about his reappointment were made only through counsel's submissions from the bar without a replying affidavit, denying the petitioners a chance to respond.

p. 5
02

Jurisdiction of the ELRC over the petition

Holding

The court did not find it necessary to strike out the petition for lack of jurisdiction; the PO raised factual issues inappropriate for a preliminary objection and failed the Mukisa Biscuits threshold.

Reasoning

Even assuming the interested party had locus, the PO raised factual matters that could not be determined without replying affidavits, since none of the respondents had responded to the petition. Facts raised by the petitioners therefore stand uncontested and the petition should proceed to hearing. A PO is determinable on law alone per Mukisa Biscuits.

p. 5
03

Effect of unopposed petition facts

Holding

Where no replying affidavits are filed, the petitioners' factual averments are uncontested and the petition proceeds as unopposed.

Reasoning

The respondents and the interested party filed no response to the petition. The court noted that ordinarily respondents ought to file replying affidavits to counter the factual basis of the petition; absent such responses, the facts as raised by the petitioners stand uncontested.

p. 5

Legal principles established

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  • An interested party against whom no orders are sought lacks locus to raise a preliminary objection in the proceedings.
  • Facts alleged by a party and not answered by a replying affidavit are uncontested and may not be contested through submissions from the bar.

Court orders

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  1. 1.The preliminary objection by the interested party has no merits and the same is hereby denied and dismissed
  2. 2.Costs to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 35(1), 35(2), 41, 73, 162(1), 162(2)(a), 165(5)(b), 232, 258
  • Employment and Labour Relations Court ActSection 12(1)(a)-(f), Section 12
  • Employment and Labour Relations Actnot specified

Cases cited (7)

  • Owners of the Motor Vessel "Lilian S" V Caltex Oil (Kenya) Ltd
    (1989) KLR
  • S.K. Macharia V Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Public Service Commission & 4 Others V Cheruioyot & 20 Others
    (2022) KECA 15 (KLR)
  • Republic V Karisa Chengo & Another
    (2017) eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) EA
  • Kenya Tea Growers & 2 Others V NSSF & 13 Others
  • Mumo Matemo V Trusted Society of Human Rights & Others
    (2021) eKLR
Jurisdiction invoked
Articles 22, 23 and 162 of the Constitution; Section 12 of the Employment and Labour Relations Court Act

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, "Elondanga & 4 others v DCC Navakholo Subcounty & 3 others; Barasa (Interested Party) (Constitutional Petition E008 of 2025) [2025] KEELRC 2552 (KLR)", Case Analysis (2025). Petition dated 12th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2552/eng@2025-09-22

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