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ELRCOtherNot stated in the judgment· [2025] KEELRC 2983 (KLR)

Banticha v Government Press & another; Clerk - Isiolo County Assembly & another (Interested Parties) (Employment and Labour Relations Petition E139 of 2025) [2025] KEELRC 2983 (KLR)

Employment and Labour Relations Court
29 October 2025
HWHellen Wasilwa
4,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, gazetted as Speaker of the Isiolo County Assembly by Gazette Notice No. 8667 of 27th June 2025, moved the ELRC by Notice of Motion seeking temporary restraints against his de-gazettement and revocation of that notice. He argued he could only be removed under section 11 of the County Governments Act through a motion supported by a third of members and a two-thirds resolution, neither of which had occurred. The Respondents (the Attorney General) raised a preliminary objection contending the court lacked jurisdiction because a Speaker is an elected state officer under Article 178 and not an employee, and that the petition withheld material facts, including the subsequent revocation by Gazette Notice No. 9513 of 14th July 2025. The 1st Interested Party (the then-Clerk) supported the application, while the 2nd Interested Party (a rival claimant to the Speakership) opposed, alleging the gazettement was fraudulently procured and that no election ever took place. Applying the Mukisa Biscuit principle, the court found the jurisdictional objection rested on contested facts and dismissed it. On the conservatory orders, the court held the applicant had demonstrated an arguable case on the face of it, confirmed the interim orders of 15th July 2025 pending the hearing of the petition, and ordered costs in the petition.

Key legal issues

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01

Jurisdiction of the ELRC over disputes concerning the Speaker of a County Assembly

Holding

The preliminary objection on jurisdiction failed because it rested on contested facts; the objection was dismissed and the petition may proceed

Reasoning

The court applied the Mukisa Biscuit principle that a preliminary objection must be a pure point of law on uncontested facts. Because the existence of an employer-employee relationship between the Speaker and the County Assembly was contested, the jurisdictional issue could not be resolved summarily, and the objection was dismissed.

p. 9
02

Whether conservatory orders should issue

Holding

Interim orders of 15th July 2025 confirmed pending full hearing since the applicant demonstrated an arguable case on the face of it

Reasoning

The court noted that determining whether a gazettement already in force can be revised would effectively decide the entire petition at a preliminary stage. Finding the applicant had demonstrated an arguable case justifying the interim orders, the judge confirmed them pending the hearing of the petition, with costs in the petition.

p. 9

Legal principles established

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  • A preliminary objection must raise pure points of law based on uncontested facts capable of disposing of the suit without further evidence

Court orders

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  1. 1.The preliminary objection dated 17th July 2025 is dismissed
  2. 2.Interim orders made on 15th July 2025 confirmed pending hearing and determination of the entire petition
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2.2, 27, 41, 47, 48, 50, 162(2), 174, 175, 177(1)(d), 178, 232, 236, 260
  • County Governments ActSections 9A, 11
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations ActCap. 8E; Section 12(1)
  • Elections ActSection 21
  • Isiolo County Assembly Standing OrdersStanding Orders 5, 6-13, 13, 63

Cases cited (8)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another
    [2014] eKLR
  • Speaker of the Senate v Attorney General
    [2013] eKLR
  • Oraro v Mbaja
    [2005] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others
    [2024] KESC 3 (KLR)
  • Giella Vs Cassman Brown and Co. LTD
    [1973] EA
  • Ogori vs Nyamira County Assembly & 7 Others
Jurisdiction invoked
Article 162(2) of the Constitution as read with 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, "Banticha v Government Press & another; Clerk - Isiolo County Assembly & another (Interested Parties) (Employment and Labour Relations Petition E139 of 2025) [2025] KEELRC 2983 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2983/eng@2025-10-29

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