Blair & another v Cabinet Secretary, Ministry of Investments Trade and Industry & 3 others
The bottom line
#Kenya's Employment Court struck out a public interest challenge to Anti-Counterfeit Authority appointments, ruling such cases now belong in the High Court.
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 court lacks jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act over suits alleging constitutional and statutory violations in public appointments
- 2.Whether the petitioners, acting in the public interest, have locus standi before the ELRC
- 3.Whether the Supreme Court's decision in Moi Teaching & Referral Hospital v Gikenyi applies retrospectively to a suit filed before its delivery
- 4.What orders should issue if the objections succeed
Key legal issues
#Jurisdiction of the ELRC over public interest litigation
The Supreme Court's decision in Moi Teaching & Referral Hospital v Gikenyi binds the ELRC and removes public interest litigation from its jurisdiction under Article 162(2)(a) read with Article 165(5)(b)
The court is bound by superior court jurisprudence. The Supreme Court addressed the ELRC's jurisdiction under section 12 of the ELRC Act and Article 162(2)(a), distinguishing matters for the High Court from matters for the ELRC and removing public interest litigation from the latter. The petitioners, describing themselves as acting in the public interest, therefore fall outside the categories of persons who may approach the ELRC.
Retrospective application of the Supreme Court's jurisdictional ruling
The petitioners should not be faulted for approaching the ELRC before the Supreme Court judgment, but the objection nonetheless succeeds on the law as it now stands
The petitioners conceded the Moi Teaching & Referral Hospital judgment was delivered on 3 June 2026, after filing. The court accepted their submissions that they acted correctly at the time, but being bound by the superior court, allowed the objections, striking out the petition while shielding them from costs and directing reversion to the High Court.
Locus standi of public interest litigants before the ELRC
Petitioners acting in the public interest lack locus standi before the ELRC, which goes to jurisdiction
Relying on Legal Advice Centre t/a Kituo Cha Sheria and Mukisa Biscuit, the respondents argued locus standi is a pure point of law going to jurisdiction. The petitioners described themselves as acting in the public interest and pleaded no personal, professional, commercial or constitutional interest affected by the appointments, removing the court's jurisdiction.
Legal principles established
#- Locus standi goes directly to whether the court has jurisdiction to hear a matter
- Public interest litigation falls outside the ELRC's jurisdiction and must be brought in the High Court
Court orders
#- 1.The preliminary objections dated 17 July 2026 are allowed to the extent that the petition herein and JR No. E029 of 2026, as consolidated, are struck out
- 2.The petitioners/applicants shall revert to the High Court, JR No. E028 of 2026 for appropriate directions
- 3.No orders on costs
- 4.The Hon. Registrar, ELRC, to place the file before the Registrar, High Court, immediately, for placement before the Presiding Judge, Judicial Review Division, for appropriate directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
- Consolidated with
- ELRC JR No. E029 of 2026
Relief refused
#Costs to the respondents on the struck-out petition
Awarding costs would defeat the essence of public interest litigation; petitioners initially moved the High Court
Hearing of the petition on its merits in the ELRC
Supreme Court jurisprudence removes public interest litigation from the ELRC's purview
Costs
No orders on costs.
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.
Indeed, the court is guided by the superior court; its jurisprudence applies.
Public interest litigation is removed from the Court to the High Court.
the objections dated 17 July 2026 are allowed to the extent that the petition herein and JR No. E029 of 2026, as consolidated, are struck out.
However, the petitioners/applicants shall revert to the High Court, JR No. E028 of 2026 for appropriate directions. No orders on costs.
Issues in the judgment
#Case numbers for the High Court and ELRC judicial review matters are inconsistently attributed across paragraphs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Blair & another v Cabinet Secretary, Ministry of Investments Trade and Industry & 3 others", Case Analysis (2026). Petition E135 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2670/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.