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Supreme CourtPartially AllowedPetition E030 & E033 of 2025 (Consolidated)

Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others

Supreme Court of Kenya
3 July 2026
9,737 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Supreme Court rules ELRC can hear pre-employment disputes and constitutional challenges.

What this practically means

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The Supreme Court decided that the Employment and Labour Relations Court (ELRC) can handle cases about job advertisements, shortlisting, interviews, and selection processes, even before someone is hired. It also said the ELRC can hear constitutional complaints about these procedures. However, if citizens sue in the public interest without being applicants, the High Court still has jurisdiction.

Executive summary

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This consolidated appeal arose from a challenge to the recruitment and appointment of CEOs and MDs of four state corporations, which the 1st to 7th respondents alleged were marred by ethnic discrimination and lack of meritocracy. The High Court at Nakuru dismissed preliminary objections challenging its subject-matter and territorial jurisdiction, holding that the dispute fell within its constitutional jurisdiction under Articles 23 and 165 of the Constitution. The Court of Appeal affirmed, finding that the ELRC's jurisdiction was limited to employer-employee relationships and that the petitioners, as citizens acting in the public interest, properly invoked the High Court's jurisdiction. The appellants and cross-appellants appealed to the Supreme Court, arguing that the ELRC had exclusive jurisdiction over pre-employment disputes. The Supreme Court partially allowed both the appeals and cross-appeals. It held that the ELRC's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act extends beyond employer-employee relationships to include pre-employment disputes such as advertisements, shortlisting, interviews, and selection processes. However, on the facts of this case, the High Court properly exercised jurisdiction because the 1st to 7th respondents were not employees, prospective employees, or parties falling within the categories listed in the ELRC Act or related statutes; they were citizens acting in the public interest raising constitutional questions of general application. The Court set aside the Court of Appeal's restrictive interpretation of ELRC jurisdiction but upheld its finding that the High Court had jurisdiction over the specific dispute. The Court declined to address territorial jurisdiction and conservatory orders, finding those issues outside its appellate jurisdiction under Article 163(4)(a). Each party was ordered to bear its own costs, and the High Court petition was directed to be heard on priority basis.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the appeal herein, and if so;
  2. 2.Whether the High Court had jurisdiction to entertain the petition before it.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear the appeal where the appellants invoked both limbs of Article 163(4) of the Constitution.

Holding

The Court has jurisdiction under Article 163(4)(a) because the appeal raises a jurisdictional question implicating the application of Articles 162(2) and 165(3)(d) of the Constitution.

Reasoning

The Court acknowledged that the appellants invoked both limbs of Article 163(4), which is generally improper. However, applying the ratio in Kibinu Kinuthia v. Rugiri & 3 others, the Court examined the pleadings and judgments below and found that the appeal raises a jurisdictional question involving the interpretation and application of the Constitution. The Court therefore exercised its discretion under Article 159(2)(d) to proceed and determine the appeal on its merits, finding that the threshold under Article 163(4)(a) had been met.

02

Whether the High Court had jurisdiction to entertain the petition challenging the constitutionality of pre-employment recruitment processes.

Holding

The High Court had jurisdiction because the petitioners were citizens acting in the public interest, not employees or prospective employees, and the dispute raised constitutional questions of general application.

Reasoning

The Court analyzed the ELRC Act, Employment Act, Labour Relations Act, and Labour Institutions Act and concluded that the ELRC's jurisdiction extends beyond employer-employee disputes to include pre-employment disputes involving parties identified in those statutes. However, the 1st to 7th respondents did not fall into any of those categories; they described themselves as human rights activists and citizens acting in the public interest. Their petition alleged constitutional violations including ethnic discrimination and lack of meritocracy, which are public law questions properly raised before the High Court under Article 165(3)(b) and (d) of the Constitution. The Court of Appeal was correct in upholding the High Court's jurisdiction on the facts of this case.

03

Whether the ELRC's jurisdiction is limited to disputes arising from an existing employer-employee relationship.

Holding

No. The ELRC's jurisdiction extends to pre-employment disputes and is not confined to employer-employee relationships.

Reasoning

The Court examined Section 12 of the ELRC Act and found that the word 'including' signifies that the category of disputes is not limited to those listed. The Court also considered the Employment Act, Labour Relations Act, and Labour Institutions Act, which extend protection to prospective employees and persons seeking employment, and provide for disputes involving parties who are neither employees nor employers. The Court held that both the High Court and Court of Appeal erred in adopting a restrictive interpretation that confined ELRC jurisdiction to existing employer-employee relationships. The ELRC has jurisdiction over pre-employment disputes such as advertisements, shortlisting, interviews, and selection processes.

Legal principles established

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  • ELRC has jurisdiction over pre-employment disputes like advertisements, shortlisting, interviews, and selection.
  • ELRC jurisdiction is not limited to existing employer-employee relationships.
  • ELRC can hear constitutional petitions challenging the legality of pre-employment procedures.
  • High Court retains jurisdiction over public interest constitutional petitions by citizens who are not employees or applicants.
  • Supreme Court can hear appeals on jurisdictional constitutional questions under Article 163(4)(a).

Court orders

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  1. 1.The consolidated petitions of appeal dated 10th June 2025 and 26th June 2025 are hereby partially allowed as follows: The Judgment of the Court of Appeal dated 23rd May 2025 is set aside to the extent that it found that the jurisdiction of the ELRC does not extend to pre-employment disputes; and the jurisdiction of the ELRC under Article 162(2)(a) of the Constitution and Section 12 of the ELRC Act is limited to employer–employee relationships only and does not extend to pre-employment disputes.
  2. 2.The cross-appeals, both dated 30th July 2025, are hereby partially allowed to the extent that: The Judgment of the Court of Appeal dated 23rd May 2025 is set aside for holding that the ELRC’s jurisdiction does not extend to the determination of constitutional petitions challenging the constitutionality or legality of pre-employment procedures and processes undertaken by employers, such as advertisements of vacancies, shortlisting of candidates, the interview and selection processes.
  3. 3.We, however, uphold the Judgment of the Court of Appeal to the extent that it found that the High Court, on the facts before it, had jurisdiction over the dispute;
  4. 4.It is ordered that Nakuru HC Constitutional Petition No. E011 of 2024 be allocated a hearing date on priority basis, in view of the period of time that has passed since the challenge on jurisdiction was made.
  5. 5.Each party to bear their own costs.
  6. 6.We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs upon lodging of these appeals be refunded to the appellants.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M MwiluDCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. E107 of 2024 (as consolidated with Civil Appeal No. E116 of 2024)
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition No. E033 of 2025

Relief refused

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Setting aside the Court of Appeal judgment in its entirety

The Court upheld the Court of Appeal's finding that the High Court had jurisdiction over the dispute on the facts before it.

Declaration that the High Court at Nakuru lacked territorial jurisdiction

The Court held that territorial jurisdiction does not constitute a matter relating to the interpretation or application of the Constitution and falls outside the purview of this Court's jurisdiction under Article 163(4)(a).

Setting aside the conservatory orders

The Court held that it cannot be drawn into deciding questions around the exercise of discretionary powers by the High Court in granting interim conservatory orders as the appellants failed to demonstrate that the judge made pronouncements touching on the interpretation and application of the Constitution.

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Based on our own interpretation and application of Articles 162 (2)(a) and 165(3)(b) of the Constitution, read together with the provisions of the relevant statutes dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC.
p. 17 Jurisdiction of the Employment and Labour Relations Court over pre-employment disputes
The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of the Constitution.
p. 18 High Court jurisdiction over public interest constitutional petitions
The consolidated petitions of appeal dated 10th June 2025 and 26th June 2025 are hereby partially allowed as follows: The Judgment of the Court of Appeal dated 23rd May 2025 is set aside to the extent that; a. It found that the jurisdiction of the ELRC does not extend to pre-employment disputes; and b. The jurisdiction of the ELRC under Article 162(2)(a) of the Constitution and Section 12 of the ELRC Act is limited to employer–employee relationships only and does not extend to pre-employment disputes.
p. 20 Final orders partially allowing the appeal
The cross-appeals, both dated 30th July 2025, are hereby partially allowed to the extent that: a. The Judgment of the Court of Appeal dated 23rd May 2025 is set aside for holding that the ELRC’s jurisdiction does not extend to the determination of constitutional petitions challenging the constitutionality or legality of pre-employment procedures and processes undertaken by employers, such as advertisements of vacancies, shortlisting of candidates, the interview and selection processes.
p. 20 Final orders partially allowing the cross-appeals
We, however, uphold the Judgment of the Court of Appeal to the extent that it found that the High Court, on the facts before it, had jurisdiction over the dispute;
p. 20 Upholding the Court of Appeal on High Court jurisdiction
Each party to bear their own costs.
p. 20 Costs order

Key timeline

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2024
Nakuru High Court Constitutional Petition No. E011 of 2024 filed challenging recruitment process.
2025-05-23
Court of Appeal delivers judgment on jurisdiction.
2025-06-10
Appellants file petition of appeal to Supreme Court.
2025-06-26
Second petition of appeal filed by appellants.
2025-07-30
Cross-appeals filed by respondents.
2026
Supreme Court delivers judgment partially allowing appeals and cross-appeals.

Practical implications

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For lawyers

Expand pre-employment litigation strategies

Lawyers can now bring constitutional challenges to recruitment processes (ads, shortlisting, interviews) in the ELRC. For clients who are not applicants but citizens acting in the public interest, file in the High Court. This dual jurisdiction requires careful forum selection based on the petitioner's status and the nature of the claim.

For businesses

Review recruitment processes for legal risks

Businesses must ensure pre-employment steps like vacancy ads, shortlisting, and interviews comply with constitutional standards (e.g., no ethnic discrimination). The ELRC can now hear challenges from rejected candidates or even public interest groups. Audit your hiring procedures to avoid litigation.

For individuals

Know your rights in job applications

If you believe a job advertisement, shortlist, or interview process was unfair or discriminatory, you can sue in the ELRC even before being hired. You can also join a public interest case in the High Court. Document any irregularities to build your case.

Frequently asked questions

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Can I sue an employer in Kenya for unfair job interview process?+

Yes, the Supreme Court ruled that the Employment and Labour Relations Court (ELRC) can hear cases about unfair interview processes, even if you haven't been hired yet. You can challenge the interview process as unconstitutional.

Which court handles employment disputes in Kenya before I am hired?+

For pre-employment disputes like unfair advertisements or shortlisting, you can now go to the Employment and Labour Relations Court (ELRC). If you are a citizen acting in the public interest, the High Court also has jurisdiction.

What is the jurisdiction of the ELRC in Kenya?+

The ELRC has jurisdiction over employment and labour relations, including disputes arising from the employment relationship. The Supreme Court confirmed that this includes pre-employment stages like recruitment, advertisements, and interviews.

Can a citizen challenge a public recruitment in Kenya without being an applicant?+

Yes, if you are a citizen acting in the public interest, you can challenge a public recruitment process for alleged constitutional violations. The High Court has jurisdiction to hear such cases, as the Supreme Court confirmed.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others", Case Analysis (2026). Petition E030 & E033 of 2025 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/50/eng@2026-07-03

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