Masomi v Tourism Fund & 6 others

High Court of Kenya, filing the petition pursuant to Articles 22 and 258 of the Constitution in the public interest to protect constitutionalism, transparency, accountability, integrity, and merit-based recruitment within public institutions. Such description relates to litigation in the public interest. Articles 22 and 258 of the Constitution allow any person to approach the court, claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or threatened. Such a person can act in persons ' interests or not in the public interest. However, a litigant claiming under Article 22 and 258 is removed from application before the court under Article 162(2)(a) of the Constitution, as held in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). The petitioner's disclosure that she prosecutes the petition in the public interest, without any claim to an employer-employee relationship or to being a prospective employee, thus removes her from the court's jurisdiction. Without proper standing, the petitioner premised her claim under Article 22 and 258 of the Constitution; the Court lacks the requisite jurisdiction to hear and determine the matter herein. Without jurisdiction under the Constitution or statute, the court must down its tools as held in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR. The objections herein should be allowed and the petition dismissed with costs. The petitioner made an oral submission that the 4 th Interested Party's objections are without merit and should be dismissed. The objections do not conform to the judgment in Moi Teaching and Referral Hospital & 3 others v Gikennyi & 74 others [2026] KESC 50 (KLR) because the petitioner challenges the employment practices within the 1st respondent and hence has proper standing before the court. The 2nd Interested Party opted not to participate in addressing the objections since they are not directly implicated in the matter. Determination The objections by the 4th Interested Party relate to the petitioner's standing to move the court with the petition. the case is that there is not employment relationship and the petition is premised under the provisions of articles 22 and 258 of the constitution n the public interest which the Supreme Court has address n Moi Teaching and Referral Hospital & 3 others v ELRC NAIROBI RULING PETITION NO. E205 OF 2026 2

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Gikenyi & 74 others [2026] KESC 50 (KLR) and held that those litigating purely in the public interest under ad have no direct employment or pre-employment prospective employment status have no standing before the court. The Supreme Court in its judgment at paragraph 70 held: As we conclude on this aspect of the appeal, we restate our determination at the beginning of this judgment that the appeal has been brought as of right under Article 163(4)(a) of the Constitution. The question is whether the Court of Appeal properly interpreted and applied the relevant provisions of the Constitution in arriving at the determination in the impugned judgment; namely, whether the 1st to 7th respondents qualified as parties in terms of Section 12 of the ELRC Act, or the other written laws. Did they petition the High Court as employees/employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment? No. Not in any of those capacities. Section 12 of the Employment and Labour Relations Court Act outlines the various parties who may file suit or be sued before the court. The list is not exhaustive. Additionally, the court has the jurisdiction to hear and determine constitutional petitions premised on employment and labour relations and the High Court is precluded from addressing such disputes in terms of article 162(2)(a) and 165(5)(b) of the Constitution, as held in Republic v Chengo & 2 others [2017] KESC 15 (KLR) and retreated in United States International University (Usiu v General; Outa & another (Interested Parties) [2012] KEHC 5516 (KLR). However, the Supreme Court, in the Moi Teaching and Referral Hospital & 3 others case cited above, has distinguished the application of those litigating in the public interest under Articles 22 and 258 of the Constitution, without any employment relationship, as lacking standing with the court. In the petition, under paragraph 1, the petitioner defines herself as follows: The petitioner is an adult Kenyan citizen and an Advocate of the High Court of Kenya, who brings this petition pursuant to articles 22 and 258 of the Constitution in the public interest to ELRC NAIROBI RULING PETITION NO. E205 OF 2026 3

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protect constitutionalism, transparency, accountability, integrity, and merit-based recruitment within public institutions. For the petitioner, the cause of action accrued from the 1st respondent's advertisement of several senior management positions, posted on 28 April 2026. Her case is that, following the publication of the shortlists and interview schedules, concerns arose regarding the transparency, fairness, integrity and legality of the recruitment process. The case is that the petitioner received information that the recruitment was conducted in an opaque, arbitrary, and inconsistent manner with constitutional requirements. There is no claim of an employment relationship, protective employment, or any other manner save for the public interest. The court, guided by the emerging jurisprudence from the Supreme Court, as cited by the 4 th Interested Party in the Moi Teaching and Referral Hospital & 3 others case cited above, held that a petition premised on public interest denies the court the necessary jurisdiction. The judgment of the Supreme Court was delivered on 3 July 2026. The petition herein was filed on 18 June 2026. On the above analysis, cognizant that the court has addressed public interest petitions before the Supreme Court judgment cited above, the court will not penalise the petitioner in costs. Accordingly, the objections by the 4 th Interested Party dated 10 July 2026 are wellfounded. The court is without jurisdiction. The petition is struck out. Each party to bear its costs. Delivered in open court this 14th day of August 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and …………………………………..……… ELRC NAIROBI RULING PETITION NO. E205 OF 2026 4

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