A Human Rights Defender (David Khaemba) acting in the Public Interest v The Cabinet Secretary, Ministry of Agriculture and Livestock Development & 4 Others

I. INTRODUCTION 1. In a petition dated 5th June 2026 filed in person, the Petitioner Mr. David Khaemba is seeking for the following reliefs – a. A declaration that the recruitment process for the position of Chief Executive officer of the Veterinary Medicines Directorate conducted on 2nd and 3rd June 2026 violated ARTICLES 10, 35, 47, 73 and 232 of the Constitution. b. A declaration that the Respondents failed to uphold constitutional principles of transparency, accountability, integrity, merit, public participation and fair competition. c. A declaration that any recruitment decision arising from the impugned process is unconstitutional, unlawful and invalid. d. An order of Certiorari quashing the entire recruitment process for the positon of Chief Executive Officer. e. An order of Prohibition restraining the Respondents from implementing, concluding, gazetting, appointing, inducting, deploying or otherwise giving effect to the impugned recruitment process. f. A Conservatory Order restraining the Respondents from appointing any person as Chief Executive Officer pending the hearing and determination of this Petition. g. An order compelling the Respondents to produce before Court all records relating to the recruitment process including EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 2 OF 15

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applications, longlists, shortlists, interview scoresheets, evaluation reports, minutes, attendance registers, conflict-ofinterest declarations and recommendations. h. An order directing the Respondents to commence a fresh, transparent, competitive, merit-based and constitutionally compliant recruitment process. i. Costs of this Petition. j. Any other relief this Honourable Court may deem just and appropriate circumstances. 2. Simultaneously, the Petitioner filed a Notice of Motion (the application) of even date under a certificate of urgency seeking for the following orders – 1.Spent. 2.Spent. 3.Pending inter partes hearing of this Application, a Conservatory Order be issued restraining the Respondents jointly and severally from approving, forwarding, recommending, gazetting, appointing, inducting, deploying, swearing in, or permitting any person whatsoever to assume the office of Chief Executive Officer of Veterinary Medicines Directorate arising from the recruitment process conducted on 2nd and 3rd June 2026. 4.Pending hearing and determination of this Application, the Respondents be restrained from implementing or giving effect to EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 3 OF 15

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any recommendation, resolution, decision, report or outcome arising from the impugned process. 5.Pending hearing and determination of the Petition, a Conservatory Order be issued suspending the implementation of the entire recruitment process for the position of Chief Executive Officer if the Veterinary Medicines Directorate. 6.Pending hearing and determination of the Petition, the Respondents be compelled to preserve and produce before this Honourable Court all records relating to the recruitment process including applications, longlists, shortlists, evaluation reports, score sheets, conflict-of-interest declarations, attendance registers, interview records, minutes and recommendations. 7.Pending hearing and determination of the Petition, the Respondents be restrained from destroying, altering, concealing or interfering with any records connected with the recruitment process. 8.Pending hearing and determination of the Petition, any recommendation, approval of resolution arising from the recruitment exercise conducted by a panel whose composition is challenged in these proceedings be suspended. 9.This Honourable Court be pleased to direct the Respondents to file and serve within a period fixed by the Court certified copies of all documents relied upon in conducting the recruitment exercise. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 4 OF 15

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10. Upon hearing the parties, this Honourable Court be pleased to issue an order of Certiorari quashing the entire recruitment process for the position of Chief Executive Officer of the Veterinary Medicines Directorate conducted on 2nd and 3rd June 2026. 11. Upon hearing the parties, this Honourable Court be pleased to declare that any participation by persons lacking lawful appointment or gazettement in the recruitment process was unconstitutional, unlawful, null and void. 12. Upon hearing the parties, this Honourable Court be pleased to declare that any recruitment process tainted by conflict of interest, procedural unfairness, lack of transparency or violation of constitutional principles is invalid. 13. Upon hearing the parties, this Honourable Court be pleased to direct that any future recruitment process be undertaken by a lawfully constituted body acting in strict compliance with the Constitution and applicable statutes. 14. Costs of this application be provided for. 15. This Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the interests of justice. 3.The application is expressed to be brought under Articles 10, 22, 23, 35, 47, 73, 159, 232, & 258 of the Constitution; the Fair Administrative Actions Act, the Leadership and Integrity Act, the Public Officer Ethics Act, and all enabling provisions of the law. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 5 OF 15

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4.In response to the application and the petition, the Respondents through the Attorney General filed a notice of preliminary objection (PO) dated 17th June 2026 raising the following preliminary points for consideration and determination by the court – a.This Honourable Court lacks the requisite subject-matter jurisdiction under Article 162(2)(a) of the Constitution of Kenya, 2010, read together with Section 12(1) of the Employment and Labour Relations Court Act, CAP 8E, to entertain, hear and grant the orders sought in the Petition and the Application filed herewith. The instant Petition and Application seek the determination of the constitutionality and legality of pre-employment procedures and administrative processes undertaken by a prospective employer, including the advertisement of vacancies, the shortlisting of applicants, the composition of the interview panel, and the selection of successful candidates, matters which fall within the jurisdiction of the High Court under Article 165(3) of the Constitution. The Court of appeal in Civil Appeal No. NAK E107 of 2024, Moi Teaching & Referral Hospital Vs Magare Gikenyi & 76 Others, held that matters touching on constitutionality, legality, or propriety of public recruitment processes undertaken prior to the establishment of an employer-employee relationship do not fall within the jurisdiction of the Employment and Labour Relations Court. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 6 OF 15

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b.There is no employer-employee relationship exists between the Petitioner and the Respondents, and the dispute as pleaded does not arise from, relate to, or concern any employment or labour relations matter contemplated under Article 162(2)(a) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act. c. The specialized jurisdiction of this Honourable Court cannot be invoked through a public interest constitutional challenge where the substratum of the dispute concerns the legality of a public recruitment process rather than an employment of labour relations dispute falling with the ambit of Article 162(2)(a) of the Constitution. d.The Petition and the Application offend the doctrine of exhaustion of administrative remedies in so far as the Petitioner has invoked the jurisdiction of this Honourable Court without first exhausting the dispute-resolution mechanisms prescribed under the applicable statutory framework governing the impugned recruitment process. 5.On 26th June 2026, the Court ordered and directed that the PO be heard and disposed of first as it raised an 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. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 7 OF 15

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6. Mr. Tarus for the Respondents filed written submissions dated 19th June 2026 and the Petitioner filed written submissions dated 29th June 2026. 7. This ruling, therefore, is in regard to the PO as raised by the Respondents. II. EVIDENCE 8. Ordinarily, matters for determination in a PO should be self-evident without the need of a court investigating the issues or going through the evidence. However, a PO may be raised on a matter of fact that the court can determine without calling evidence based on the pleadings filed. For example, if a party pleads lack of jurisdiction, as is in this matter, the court has to examine the facts and prima facie determine whether the matter is factually and legally properly before the court. 9. In the supporting affidavit to the application and the petition, the Petitioner challenged the recruitment process of the Chief Executive Officer (CEO) of the 4th Respondent as conducted on the 2nd and 3rd of June 2026. It is his case that the process violated the constitutional articles cited above. The Court was called to intervene and stop the approval, recommendation, appointment, gazettement, induction, deployment, or otherwise assumption of office by a candidate through that recruitment process. The recruitment process was termed as lacking in transparency, integrity, fairness, constitutionality, tainted EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 8 OF 15

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with procedural impropriety, conflict of interest, and in violation of the principles governing recruitment to a public office. 10. As a matter of fact, and both sides agree on this, no individual had been recruited to the impugned vacancy as at the time of filing of the matter in court. 11. It is on the foregoing background that the Respondents filed the PO as stated above seeking that the petition and the application be struck out for lack of jurisdiction. III. SUBMISSIONS 12. In support of the PO, Counsel for the Respondents submitted that by dint of Article 162(2) of the Constitution as read with Section 12(1) of the Employment and Labour Relations Court Act, this Court lacks jurisdiction to entertain this matter for the reason that there is no employment relationship that has been created through the impugned recruitment process. It is submitted that this Court, Employment and Labour Relations Court (ELRC), lacks jurisdiction over pre-employment recruitment processes and that this matter belongs to the jurisdiction of the High Court under Article 165(3) of the Constitution. 13. In support of the argument that a court has no business taking any further steps without jurisdiction, Counsel cited the notorious decision in Owners of Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd (1989) KLR 1. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 9 OF 15

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14. On lack of jurisdiction of this Court to entertain the matter, Counsel cited the Court of Appeal in Moi Teaching and Referral Hospital V Dr. Magare Gikenyi & 152 Others (2025) KECA 937 (KLR) where it was held that ELRC has no jurisdiction in disputes concerning pre-recruitment processes and procedures. The Court of Appeal held that ELRC’s jurisdiction applies in disputes where there are already existing employment and labour relations between the parties. 15. Further citing the Court of Appeal in Attorney General & 2 Others V Okiya Omtata Okoiti & 14 Others (2020) eKLR Counsel submitted that the jurisdiction of the ELRC is limited to the matters listed under Section 12 of the Employment and Labour Relations Court Act. 16. In his response to the foregoing, the Petitioner conceded that there is no employment relationship between the parties and hence no such relationship was pleaded or alleged. The Petitioner submitted that the issue before the court is not about employment but the fairness, transparency, legality, and constitutionality of the recruitment process of the CEO of the 4th Respondent. 17. The Petitioner submitted that the issue or recruitment process lies within the jurisdiction of ELRC as delineated under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. It was submitted that upon recruitment the CEO shall become an employee with all rights, privileges, and EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 10 OF 15

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obligations of an employee as envisaged in the law, as opposed to a political or an executive appointment. 18. The Petitioner insisted that the matter before the Court is one about employment and labour relations and the law applicable thereto in a recruitment process. It was submitted that Counsel for the Respondent misapprehended the subject matter in Court in that all the decisions cited are factually distinguishable from the facts pertaining to the instant application and the petition. It was submitted that if the position taken by the Respondents was to obtain, then all matters challenging recruitment processes should then be transferred to the High Court and render the jurisdiction of the ELRC narrow and irrelevant. 19. The court was urged to note that the subject matter hereof concerns recruitment into a public office and not a private entity. IV. ANALYSIS & DETERMINATION 20. The facts and the circumstances leading to the filing of this petition and the application are that at the material time there was a recruitment process of the CEO of the 4th Respondent that the Petitioner felt was not conducted in a transparent and lawful manner. In that apprehension, the Petitioner approached the court to stall the process as per the prayers set out in the introductory part of this ruling. EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 11 OF 15

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21. It is a fact that was acknowledged by both sides that there is not yet an employer-employee relationship that was contested. The Petitioner is challenging the recruitment process that is to create the employment relationship. The challenge is based on the constitutional and statutory provisions cited above. 22. It is trite law that a court has no business dealing with a matter without jurisdiction in any manner. Any orders or directions without jurisdiction amount to nothing – see Owners of the Motor Vessel “Lillian S” V Caltex Oil (K) Limited (supra). If the PO by the Respondents is upheld, then, the application and the petition shall be struck out. 23. Counsel for the Respondents relied on the decision in Moi Teaching and Referral Hospital V Dr. Magare Gikenyi & 152 Others (supra) where the Court of Appeal was categorical that ELRC has no jurisdiction in disputes where an employer-employee relationship has not crystallized. The Court of Appeal took the view that Section 12 of the Employment and Labour Relations Court Act does not extend the jurisdiction of this court to matters beyond the scope set out therein. It was thus held and concluded that ELRC has no jurisdiction in disputes contesting the recruitment process. 24. While this Court is bound by the above decision and holding therein, I do not agree with the same. It is rather out of tune with logical reasoning to imagine that a court that has the jurisdiction to hear and EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 12 OF 15

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determine disputes between an employer and an employee has no jurisdiction to hear and determine disputes arising from the recruitment process that creates that relationship. It is unfortunate that a party dissatisfied with the recruitment process, going by the decision above, would have to file such a dispute in the High Court and then as soon as an employment relationship is created the High Court would cease to have jurisdiction and the matter would be within the purview of the ELRC. In my considered view, this foregoing scenario would cause unreasonable delay and costs on litigants. 25. Further, in the context of discrimination, Section 5(8) of the Employment Act defines an employee to include an applicant for employment. No reason is to be found in the Act as to why this definition does not obtain in all other contexts, including the definition in Section 2 that defines an employee as – a person employed for wages or a salary and includes an apprentice and indentured learner. 26. The jurisdiction of ELRC as a special court has been a subject of serious litigation in the recent past. The decision above from the Court of Appeal is one of many that have dealt with the subject. In a more recent decision arising from an appeal in the above case, Moi Teaching and Referral Hospital & 3 Others V Dr. Magare Gikenyi & 152 Others, judgment delivered on 3rd July 2026, the Supreme EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 13 OF 15

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Court agreed with the Court of Appeal on the limited, restricted, and narrow jurisdiction of ELRC. 27. Again, I do not agree with the decision for the reasons stated above, but based on the principle of stare decisis, this court is bound by the two decisions and more so the finding and holding by the Supreme Court as the apex court. 28. In the circumstances, based on the fact that there was no employeremployee relationship created as to be challenged in the ELRC, this Court has to let go and strike out the application and the petition for lack of jurisdiction. 29. As absurd as it sounds, once the recruitment process is concluded and an appointment made, thereby creating an employer-employee relationship, ELRC shall assume jurisdiction over any dispute or challenge arising therefrom. ORDERS (i) The Petition dated 5th June 2026 and the Notice of Motion dated 9th June 2026 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 28TH DAY OF SEPTEMBER, 2026. .................................... DAVID NDERITU EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 14 OF 15

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JUDGE EKRC KK PETITION NO. E014 OF 2026 RULING PAGE 15 OF 15

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