Republic v Kenya Electricity Transmission Company Limited; Felix Nandi (Ex Parte Applicant)
The bottom line
#Kenya's Employment Court struck out a public-interest challenge to a KETRACO recruitment, confirming such cases must now go to 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 respondent's preliminary objection is a pure point of law under the Mukisa Biscuit principles or a hybrid of law and fact
- 2.Whether the ex parte applicant, pleading public interest, falls within the ELRC's jurisdiction under section 12 of the ELRC Act as demarcated by the Supreme Court in the Gikenyi case
- 3.Whether the applicant's belated characterisation as a prospective employee cures the jurisdictional defect
Key legal issues
#Jurisdiction over public-interest challenges to recruitment processes
The ELRC lacks jurisdiction over a recruitment challenge brought purely in the public interest; such matters belong to the High Court
Following the Supreme Court's Gikenyi decision, the jurisdictional inquiry depends on both the nature of the dispute and the capacity in which the litigant sues. Section 12 of the ELRC Act confines the court to employment relationships; a public-interest litigant is outside those relationships and must resort to the High Court under the constitutional enforcement provisions.
Whether the preliminary objection was a pure point of law
The court effectively treated the objection as sustainable on the pleadings, holding the applicant's public-interest characterisation could not be cured
The applicant argued the objection rested on contested facts (his capacity), relying on Njau and Aviation & Allied Workers Union. The court nonetheless determined standing from the pleadings themselves, which framed the case exclusively as a public-interest challenge, and held the defect could not be cured by a further affidavit.
Effect of belated re-characterisation as a prospective employee
The shift from public-interest litigant to prospective employee, made after the jurisdictional challenge, does not cure the defect
The pleadings contained no averment that the applicant was a prospective employee, had applied or intended to apply for the advertised position, or held the prescribed qualifications. The re-characterisation arose only after the objection was raised and underscored rather than cured the jurisdictional defect.
Legal principles established
#- Employment disputes initiated in the public interest fall outside the ELRC's jurisdiction and belong to the High Court, per the Supreme Court's demarcation in Gikenyi
- A litigant who describes himself solely as acting in the public interest lacks standing before the ELRC
- Jurisdiction flows only from the Constitution or statute and a court must down tools once it finds it lacks jurisdiction
Court orders
#- 1.The suit is struck out for want of jurisdiction
- 2.No orders on costs
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; jurisdiction challenged under the Supreme Court's demarcation in the Gikenyi case
Relief refused
#Leave to apply for judicial review and orders of certiorari and prohibition against the KETRACO vacancy notice
The court lacked jurisdiction because the applicant sued purely in the public interest, outside section 12 of the ELRC Act per the Gikenyi decision
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.
As addressed above, the court is without jurisdiction to hear and determine the matter herein filed in the public interest. The suit is hereby struck out. No orders on costs.
The jurisdictional inquiry depends not only upon the nature of the dispute, but equally upon the legal capacity in which the litigant invokes the Court's jurisdiction.
Jurisdiction is not a procedural technicality to be overcome in litigation; it is the lifeblood from which the Court derives its authority to hear and determine a dispute.
a petitioner who is not an employee, employer, trade union official, employer federation official, prospective employee, person seeking employment, cabinet secretary, applicant for employment or person aggrieved by a decision of the Director of Employment is removed from the court's jurisdiction.
Issues in the judgment
#Conflicting dates for the Gikenyi Supreme Court judgment
Typographical error in constitutional article citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kenya Electricity Transmission Company Limited; Felix Nandi (Ex Parte Applicant)", Case Analysis (2026). Judicial Review Application No. E053 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2671/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.