A Human Rights Defender (David Khaemba) acting in the Public Interest v The Cabinet Secretary, Ministry of Agriculture and Livestock Development & 4 Others
The bottom line
#Kenya's Employment Court struck out a challenge to a public recruitment process, ruling it can only hear disputes after an actual employment relationship exists.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has subject-matter jurisdiction over a constitutional challenge to a public recruitment process where no employer-employee relationship has been created
No. Bound by the Court of Appeal in Moi Teaching and Referral Hospital v Magare Gikenyi and by the Supreme Court's affirmance of it, the ELRC has no jurisdiction over pre-employment recruitment disputes; the petition and application were struck out.
Both sides conceded that no appointment had been made and no employer-employee relationship existed. The Court of Appeal held that Section 12 of the ELRC Act does not extend the ELRC's jurisdiction to pre-recruitment disputes, and the Supreme Court (judgment of 3rd July 2026) endorsed the limited, restricted and narrow jurisdiction of the ELRC. The judge considered the position illogical and noted that Section 5(8) of the Employment Act defines an employee to include an applicant for employment, but applying stare decisis held himself bound by the superior courts and let go of the matter.
Whether a preliminary objection may be determined by examining the pleadings without calling evidence
Yes. Where a party pleads lack of jurisdiction, the court may examine the facts as pleaded and prima facie determine whether the matter is properly before it.
The court observed that a preliminary objection should ordinarily be self-evident without investigating issues or going through evidence, but acknowledged the exception that a PO may rest on a matter of fact the court can determine from the pleadings, lack of jurisdiction being an example. It therefore examined the petition, the supporting affidavit and the parties' common position that no employment relationship existed, and resolved the objection on that factual basis without taking evidence.
The effect of a finding that the Court lacks jurisdiction
All orders and directions made without jurisdiction amount to nothing; the only competent step is to decline jurisdiction and strike the matter out.
Relying on Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd, the judge restated that a court has no business dealing with a matter without jurisdiction in any manner and that orders made without jurisdiction are a nullity. Because the ELRC lacked subject-matter jurisdiction, the petition and the notice of motion had to be struck out rather than determined on their merits, and no consequential or conservatory orders could issue.
Legal principles established
#- A court has no business dealing with a matter without jurisdiction; any orders or directions made without jurisdiction amount to nothing.
- The ELRC has no jurisdiction over disputes concerning pre-employment recruitment processes where no employer-employee relationship has crystallised; such matters fall outside Section 12 of the ELRC Act.
- A subordinate court is bound by the Court of Appeal and Supreme Court holdings on its own jurisdiction under stare decisis, even where the judge disagrees with them.
- Once a recruitment process is concluded and an appointment made, thereby creating an employer-employee relationship, the ELRC assumes jurisdiction over any dispute or challenge arising from it.
Court orders
#- 1.The Petition dated 5th June 2026 and the Notice of Motion dated 9th June 2026 are hereby struck out for this Court's lack of jurisdiction over the subject matter
- 2.No order on costs
- Jurisdiction invoked
- Articles 22 and 258 of the Constitution of Kenya, 2010 (petition filed in person as a human rights defender acting in the public interest); the respondents challenged the Court's competence under Article 162(2)(a) as read with Section 12(1) of the Employment and Labour Relations Court Act, CAP 8E
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A Human Rights Defender (David Khaemba) acting in the Public Interest v The Cabinet Secretary, Ministry of Agriculture and Livestock Development & 4 Others", Case Analysis (2026). Petition No. E014 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2660/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.