Midalimu & 2 others v Musiega & 4 others

RULING I. Introduction 1. In a petition dated 3rd September 2026 led in person, the Petitioners are jointly seeking for the following reliefs – a. That the applications and petition be certied urgent, service be dispensed with in the rst instance. b. That pending hearing and determination of the application/notice of motion, the court grant ex parte conservatory order in the form of a temporary injunction restraining the 1st, 2nd and 3rd Respondents or any of their assigns from taking any further steps towards the vetting, approval or appointment or reappointment of the 1st interested party to the oce of county attorney pursuant to the notice issued by the 2nd Respondent on or about 21st August 2026 and the vetting process conducted on Friday 28th August 2026. c. That pending hearing and determination of this petition, this court grant a conservatory order in the form of a temporary injunction restraining the 1st, 2nd and 3rd Respondents or their assigns from taking any further steps towards the vetting, approval or appointment/ reappointment of the 1st interested party to the oce of county attorney pursuant to the notice issued by the 2nd Respondent on or about Friday 21st August 2026 and the vetting process conducted on 28th August 2026. d. That pending hearing and determination of this petition, this court grant a conservatory order suspending the process of appointment/reappointment of the 1st interested party to the oce of County Attorney pursuant to the notication published by the 2nd Respondent on or about 21st August 2026 and the vetting process conducted on Friday 28th August 2026. e. That pending hearing and determination of this application and petition, the court issue an injunction restraining the 2nd interested party, its Board, CEO or any of its assigns or delegates from entering into any employment contract with the 1st interested party pursuant to any appointment pursuant to the process initiated by the notication issued by the 2nd respondent on or about 21st August 2026 and the vetting conducted on Friday 28th August 2026. f. That pending hearing and determination of the application, and or petition, a conservatory order be granted in the form of an injunction restraining the interested party from freshly assuming or acting in the oce of county attorney, taking up an employment contract or taking up any fresh role pursuant to the vetting and approval process initiated vide notice published in the Daily Nation Newspaper on 21st August 2026 by the County Assembly Clerk and arising from any approval from the vetting conducted on 28th August 2026. That upon hearing and determination of the petition, the court nd that the notication published by the 2nd and 3rd respondent in the daily nation on 21st August 2026 was inadequate and therefore null and void. g. That upon hearing and determination of the petition, the court nd that the 1st Respondent herein, HE the Governor of Vihiga contravened the Public Appointments Act in failing to publish the notication contemplated under Section 6(2) of the Act. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 2

page 2 of 10

2. h. That upon hearing of the petition, the court nd and a declaration be issued that the public appointment process initiated by the Notication made by the Clerk of the county Assembly vide Daily Nation on 21st August 2026, to the extent that it denied members of the public a right of participation, is unconstitutional, null and void. i. That costs of this petition and application therein be provided for. Simultaneously, the Petitioners led a Notice of Motion (the application) of even date under a certicate of urgency seeking for the following orders – a. Spent. b. That pending hearing and determination of this application/notice of motion, the court grant ex parte a conservatory order in the form of a temporary injunction restraining the 1st, 2nd and 3rd Respondents or any of their assigns from taking any further steps towards the vetting, approval or appointment/reappointment of the 1st interested party to oce of county attorney pursuant to the notice issued by the 2nd Respondent on or about 21st August and the vetting process conducted on Friday 28th August 2026. c. That pending hearing and determination of this petition, this court grant a conservatory order in the form of a temporary injunction restraining the 1st, 2nd and 3rd Respondents or their assigns from taking any further steps towards the vetting, approval or appointment/ reappointment of the 1st interested party to any county State oce pursuant to the notice issued by the 2nd Respondent on or about 21st August and the vetting process conducted on Friday 28th August 2026. d. That pending hearing and determination of this petition, this court grant a conservatory order suspending the process of appointment/reappointment of the 1st interested party to the oce of County attorney pursuant to the notication published by the 2nd Respondent on or about 21st August and the vetting process conducted on Friday 28th August 2026. e. That pending hearing and determination of this application and petition, the court issue an injunction restraining the 2nd interested party, its Board, CEO or any of its assigns or delegates from entering into any employment contract with the 1st interested party pursuant to any appointment pursuant to the process initiated by the notication issued by the 2nd respondent on or about 21st August 2026 and the vetting conducted on Friday 28th August 2026. f. That pending hearing and determination of the application, and or petition, a conservatory order be granted in the form of an injunction restraining the interested party from assuming or acting in any state oce at the county, taking up an employment contract or taking up any fresh role pursuant to vetting and approval process initiated vide notice published in the Daily Nation Newspaper on 21st August 2026 by the County Assembly Clerk and arising from any approval from the vetting conducted on Friday 28th August 2026. g. That costs be this application be provided for. 3. Subsequently, the Petitioners appointed A. N. Njuguna & Associates to act for them in the matter. 4. In response to the application and the petition, the Respondents through the County Attorney led a response to the petition and a notice of preliminary objection (PO) dated 8th September 2026 raising the following preliminary points for consideration and determination by the court – https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 3

page 3 of 10

1. The petition and the application are fatally and incurably defective by reason of failure to comply with Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 [Mutunga Rules] requiring a petition to be signed by either the Petitioner or his advocate and also rules applicable to representative suits requiring parties to suit to grant written authority to a party before such party can act for others. The Petition and the application were not led by an advocate and contain only one signature with no disclosure whose signature it is and why all Petitioners did not sign. 2. The petition and the application relates to and seeks orders of the honourable Court to interfere with a matter pending before the County Assembly of Vihiga in exercise of a statutory duty namely approval proceedings in respect of a candidate nominated for appointment to a public oce under the Public Appointments (County Assemblies Approval) Act and of which the County Assembly is yet to make a decision which in itself would an infringement of the principle of separation of powers envisaged by Articles 1 and 6 of the Constitution. 3. The petition and the application is speculative and a serious infringement and onslaught on the discretion and independence of the County Assembly as a state organ guaranteed by sections 9, 10 and 11 of the Public Appointment County Assemblies Approval) Act as the same assumes that the only resolution available to said Assembly at the conclusion of the approval proceedings is to approve the 1st Interested Party automatically for appointment as County Attorney. 4. The petition violates rule 10(2)(c) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 [Mutunga Rules] as raises no constitutional issues for the intervention of the Honorable Court in exercise of its jurisdiction in Constitutional petitions the only complaint being an alleged omission to comply with sections 6 and 7 of the Public Appointments (County Assemblies Approval) Act which omissions if any were not mandatory, were explained and are available for redress under the respective Act alleged to have been violated. 5. The Petitioners are guilty of violation “Exhaustion Principle” through his deliberate failure to comply procedures for objection to a candidate nominated for approval proceedings which procedures are mandatory and are expressly provided under sections 7 and 8 of the Public Appointments (County Assemblies Approval) Act and of which they disregarded. 6. The Petitioners are estopped from maintaining this petition purportedly to enforce the provisions of the Public Appointments (County Assemblies Approval) when they are themselves guilty of violation of section 7. (10) and (11) of the same Act on the manner of raising objection to approval proceedings relating to a nominee under the Act. 7. The Petitioners are guilty of violation of rule 10(2)(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 [Mutunga Rules] on the capacity in which they were petitioning and to that extent lack the required legal capacity (Locus Standii) as Constitutional petitions are not avenues for public ocers or ventilate their personal grievances or vengeance against the employer. 8. The Petitioners petition goes against and indeed violates the provisions of Chapter Six of the Constitution of leadership and integrity, Sections 8, 9 and 27(b) of the Conict of Interest Act and section 6 of the Vihiga Code of Conduct and Ethics for Vihiga County Public Service Board and Vihiga County Public Service Board and Vihiga County Public Service. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 4

page 4 of 10

9. The Petition and the application is frivolous, vexatious, incompetent and an outright abuse of the process of the Honorable Court. 5. Mr. Chole appeared for the 2nd and 3rd Respondents. 6. On 9th September 2026, the Court ordered and directed that the PO be heard and disposed of rst as it raised the issue of lack of jurisdiction of this Court to hear and determine the petition and the application. Further, it was directed that the PO be canvassed by way of written submissions. 7. Mr. Godia for the 1st Respondent and the Interested Parties led written submissions dated 9th September 2026 and Mr. Mutinda for the Petitioners led written submissions dated 10th September 2026. Mr. Chole for the 2nd and 3rd Respondents did not le any papers but stated that his clients supported the PO and fully associated with the submissions by Mr. Godia. 8. This ruling, therefore, is in regard to the PO as raised by the 1st Respondent and the Interested Parties. II. The Gist of the PO 9. Ordinarily, matters for consideration and determination in a PO should be self-evident without the need of a court investigating the issues or going through the evidence. However, beyond Mukhisa Biscuits Manufacturing Company Limited V West End Distributors Limited, a PO may be raised on a matter of fact that the court can determine without calling evidence based on the pleadings led. For example, if a party pleads lack of jurisdiction, as is in this matter, the court has to examine the facts and the law and prima facie determine whether the matter is factually and legally properly before the court. Further, where facts are conceded or admitted the court need not spend time waiting for evidence to be called in support or defence of the same. 10. In the petition, it was pleaded that the 1st Interested Party is the substantive County Attorney of Vihiga and that as at the time of the ling of the petition his name was before the County Assembly for vetting and approval for reappointment to the same position. 11. It was pleaded that the process adopted in the identication and vetting of the 1st Interested Party did not conform and comply with various provisions of County Governments Act and the Public Appointments Act. It was specically pleaded that public participation had been denied against the demand in Section 7 of the Public Appointments Act hence denying the citizens of the County of Vihiga an opportunity to communicate and comment on the suitability of the 1st Interested Party for reappointment. It was pleaded that the Respondents failed in the above duty in that the 1st Respondent failed to issue a notice informing the public of the nomination and that the 2nd and 3rd Respondents failed to notify the public of their receipt of the notice of nomination from the 1st Respondent. 12. It was stated that while the 2nd and 3rd Respondents issued a notice to the public of the nomination, they failed to inform of the specic position for which the nomination related to. It was pleaded that in the circumstances, members of the public, including the Petitioners were not able to submit their views on the nomination before the vetting. 13. It was stated that the term of the 1st Interested Party has not expired and yet the 1st Respondent intends to reappoint him ahead of the expiry and the law does not provide for automatic reappointment of a county attorney. It was pleaded that the statutory six years of service for the 1st Interested Party commenced on 20th October 2020 and the same ought to end around the same date in 2026. It was stated that nomination, vetting, and appointment cannot be legally done before the expiry of the term of service. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 5

page 5 of 10

14. It was pleaded that once a person is nominated the appointment must be done within seven days of the nomination, yet, the 1st Respondent is still the substantive holder of the impugned oce of the county attorney. 15. The foregoing pleadings are reproduced in the supporting adavits to the petition and the application. 16. It is on the foregoing background that the 1st Respondent and the Interested Parties led the PO as stated above seeking that the petition and the application be struck out for the reasons in the grounds of the PO reproduced above. 17. However, in the directions issued on 9th September 2026 for the hearing and disposal of the PO, the Court, suo motto, also directed Counsel for the parties to submit on whether the Court has jurisdiction over the subject matter in view of the judgment of the Supreme Court in Moi Teaching and Referral Hospital & 3 Others V Dr. Magare Gikenyi & 74 Others (ibid). III. Submissions 18. In support of the PO, Counsel for the 1st Respondent and the Interested Parties submitted that following the decision of the Supreme Court in Moi Teaching and Referral Hospital & 3 Others V Dr Gikenyi & 74 Others (2026) KESC 50 KLR, this Court (ELRC) has no jurisdiction over the subject matter. It was submitted that the apex court found and held that matters of public law between citizens and state organs, concerning alleged constitutional violations, nd their jurisdiction in the High Court as opposed to matters of employment relationships which are in the realm of private law. 19. The Court was urged to down its tools on the basis of the above ground alone and proceed to strike out the petition and the application. 20. On ground one of the PO, it was submitted that the petition is fatally defective for failure by the Petitioners to comply with Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (the Mutunga Rules). It was submitted that only one of the Petitioners signed the petition and no authority was led granting that one petition the permission to sign for and on behalf of the others. It was submitted that since the Petitioners had no counsel on record at the point of ling of the petition and did so in person, each of the Petitioners ought to have signed the petition in compliance with Rule 10(2) of the Mutunga Rules. It was further submitted that the signatory in the application and the petition was not disclosed and that the name of the 1st Petitioner is only disclosed in the verifying and supporting adavits. 21. On the second ground, it was submitted that the petition and the application are defective in that they are calling upon the Court to injunct the Respondents from executing their statutory and legislative duties and obligations against the doctrine of separation of powers. It was submitted that the Petitioners should have waited for the outcome and challenge the same in accordance with the law. 22. It was further submitted in support of the third ground that it is premature for the Petitioners to assume that the nomination and appointment of the 1st Interested party will be automatic. 23. On ground 4, it was submitted that the petition raises no constitutional issues warranting the intervention of the Court as the main allegation is that the Respondents failed to comply with Sections 6 & 7 of the Public Appointments (County Assemblies Approval) Act. It was submitted that the petition as led does not meet the standards and threshold established in Anarita Karimi Njeru V Republic (1979) KLR 154. 24. On ground 5, it was submitted that the petitioners did not exhaust other remedies before approaching the Court. It was submitted that the Petitioners were aware of the date of vetting of the 1st Interested https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 6

page 6 of 10

Party and ought to have attended the hearings to air their views and or concerns about the procedures adopted and or the tness of the nominee to serve. It was further submitted that the appointment, if it will happen, is long way ahead. 25. Further, it was submitted on grounds 6 and 7 that the Petitioners have not demonstrated loci standi upon which they led the petition. It is further submitted that all the Petitioners are employees of the County Government of Vihiga and hence not “members of the public” in that context. It was further submitted that the petition and the application are frivolous, vexatious, and led in abuse of the court process. 26. Counsel for the Petitioners submitted on various points summarized as follows. It was submitted that the Court should concern itself with the substance rather than the form of the petition. Counsel argued that Rule 10(2)(f) of the Mutunga Rules is on form rather than the substance and that even if the Petitioners failed to comply therewith, the petition was not rendered incompetent. It was submitted that the petition was signed by the 1st Petitioner, who also swore the verifying adavit and the supporting adavit to the application, for and on behalf of the other two and that nothing was unlawful about that as to render the petition fatally defective. 27. It was further submitted that the issue above is remedied under Article 22 of the Constitution and Rule 10(3) of the Mutunga Rules that provide that a petition may even be presented by way of an oral complaint, a letter, or informal documentation. The Court was urged not to strike the petition for want of form but consider the substance and the overarching objective in upholding justice. 28. On separation of powers and the jurisdiction the of courts to interfere with a legislative processes, it was submitted that where it is demonstrated that a legislative body had gone amok and exceeded its jurisdiction or failed to follow the law, a court shall intervene and remedy such blatant legislative transgressions and deference. It was further submitted that the 2nd and 3rd Respondents are not equivalent to the County Assembly and that it is their individual administrative actions that the Petitioners are seeking to injunct. 29. On the doctrine of exhaustion Counsel cited the holding of the Supreme Court in the Abidha case to the eect that the same is an issue that cannot be determined on a PO as it demands for the Court to interrogate the facts and the evidence of the case. It was urged that the petition is not attacking the suitability of the 1st Interested Party for the position but the manner in which he was nominated and the criteria applied. It was submitted that the process was not subjected to public scrutiny, also known as public participation. 30. On loci standi of the Petitioners in ling the petition, it was submitted that the Petitioners are constitutionally within their rights to present and prosecute the petition on merits. 31. On the jurisdiction of the Court to entertain the petition, it was submitted that the Supreme Court in Moi Teaching and Referral Hospital V Dr. Gikenyi & 74 Others (supra) held that the High Court has the jurisdiction over pre-employment disputes. However, it was submitted that the Supreme Court at no point took away the jurisdiction of this Court (ELRC) to hear and determine employment disputes. It was submitted that such disputes did not only arise where there was an employment relationship but also included pre-employment disputes. 32. It was submitted that each case must be heard and determined on own merits and circumstances. It was further submitted that the petition herein is challenging a specic pre-employment process that is outrightly unconstitutional and this Court was urged not to render the Petitioners remediless. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 7

page 7 of 10

IV. Analysis & Determination 33. The facts and the circumstances leading to the ling of this petition and the application are not contested and the same are clear. The 1st Interested Party is the County Attorney in the County Government of Vihiga, a position that mirrors that of the Attorney General in the National Government of the Republic. His current term in that position is coming to an end sometimes in October. As a matter of fact, therefore, there was no vacancy in that position as at the time of the ling of this petition and there is none as at the time the Court is authoring this ruling. 34. Notwithstanding the above, the Respondents have set in a motion a process that if completed shall have the 1st Interested Party reappointed for a second term. It is the Petitioners’ case that the process is lacking in transparency and public participation. The Petitioners made it very clear that they are not attacking the qualication and competency of the 1st Interested Party to hold or occupy that position, but rather they are opposed to what they consider to be a awed and illegal procedure and process that might ultimately lead to the reappointment of the said nominee. 35. They have challenged the process from several fronts, as enumerated in the summary in the foregoing parts of this ruling, inter alia, violation of various provisions of the Mutunga Rules and the Public Appointments (County Assembly Approval) Act. That was the gist of the PO. 36. However, on its own motion, the Court requested Counsel for the parties to address the issue of the jurisdiction of this Court, or lack thereof, over the subject matter in view of the recent judgment of the Supreme Court in Moi Teaching and Referral Hospital V Dr. Gikenyi & 74 Others (supra). In my considered view, this should be the starting point in dissecting the matter, for the reason that if the Court nds that it has no jurisdiction it should make no more one step – see The Owners of Vessel “Lillian “S” V Caltex Oil (Kenya) Limited. 37. The above decision in the Moi Teaching and Referral Hospital (supra) from the apex court has somehow reignited a serious debate on the jurisdiction of this court vis a vis that of the High Court. While this debate and unclear demarcation over the jurisdiction of the two courts has been ranging since the advent of the new Constitution of Kenya in 2010, the same does not appear to have settled. While my personal view and conviction has always been that this court (ELRC) has the unlimited and unhindered jurisdiction over all matters employment and labour relations, the apex court has taken a dierent view. 38. There is no debate that this Court is bound by the decision of the apex court through the principle of stare decisis, I nd the position taken by the apex court a bit surprising and confusing. While the Supreme Court settled that this Court has jurisdiction in pre-employment, employment, and postemployment disputes, it made a surprising turn in the decision and stated that – paragraph 75 – The respondents moved the High Court for the vindication of the alleged breach of specied constitutional rights. The dispute as presented and prosecuted was clearly not one of private 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. 39. The above position and holding points towards the concern of the person(s) ling the claim as opposed to the subject matter. My understanding of the above reading is that where the action, say a petition, is led and presented by a person(s) who have no direct interest in the matter as either applicants, interviewees, or employees in the dispute, such action should be led in the High Court. Where the action is by a person(s) with a direct interest, such as applicants for a vacancy, interviewees, employees, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 8

page 8 of 10

or so to say persons who are potential or serving employees standing in line to benet from the employment relationship created or to be created, then the matter belongs to the ELRC. 40. The Petitioners herein are very clear. Although they are employees of the County Government of Vihiga, they neither applied nor are they interested in employment as county attorney. They are thus neither applicants nor potential applicants even if the position was to be advertised. They repeatedly stated in the petition and the application that they have led and presented this petition as public litigation spirited individuals and defenders of the Constitution and crusaders for human rights. This fact places the Petitioners in the category of the persons that the Supreme Court decided should le their petition in the High Court. 41. I am aware that the Petitioners rst approached the High Court at Vihiga and led Petition No. E009 of 2026. However, on 2nd September 2026 my brother Nyakundi J of the High Court directed that he lacked jurisdiction over the subject matter. The learned Judge took the view that the issues for adjudication were in the nature of employment and labour relations and hence within the purview and jurisdiction of ELRC. That is how the Petitioners ended up ling this petition before me. 42. I do not know whether my brother Nyakundi J was aware of the decision in Moi Teaching and Referral Hospital (supra) from the Supreme Court but, the directions issued as presented to this Court by the Petitioners does not show that the decision was brought to the attention of the learned Judge. The good Judge took a good look at Section 12 of the Employment and Labour Relations Court Act and Article 162(1)(3) of the Constitution and entertained no doubts in his mind that the matter belonged to the ELRC. 43. While I agree and align with the sentiments of the learned Judge in his directions dated 2nd September 2026, we are both bound by the judgment from the Supreme Court. 44. It is a fact that was acknowledged by both sides that there is yet to be created an employer-employee relationship from the challenged process. The Petitioners are challenging the recruitment process that is likely to create an employment relationship. The challenge is based on the constitutional and statutory provisions cited elsewhere in this ruling. 45. In the circumstances, based on the fact that there was no employer-employee relationship created as to be challenged in the ELRC and, further based on the fact that the Petitioners are neither applicants, interviewees, or in any manner directly linked to the nomination and appointment to the position, this Court has to let go and strike out the application and the petition for lack of jurisdiction. 46. Having arrived at the conclusion above, it shall be academic for the Court to venture into the other issues raised by the Respondents in the PO. 47. However, the Court hereby appeals to the Respondents and the Interested Parties to ensure that the process is anchored and executed in accordance with the law to avoid further unnecessary litigation over the issue. V. Orders i. The application by the Petitioners dated 3rd September 2026 and the petition are hereby struck out for this Court’s lack of jurisdiction over the subject matter. ii. No order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 9

page 9 of 10

.................................... DAVID NDERITU JUDGE ELRC KAKAMEGA https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24 10

page 10 of 10