Republic v Kenya Electricity Transmission Company Limited; Felix Nandi (Ex Parte Applicant)

should have been filed in the High Court, and the court lacks jurisdiction to hear the same. On the objections, the respondent submitted that the Ex-parte Applicant commenced these proceedings by filing an application dated 5 June 2026. Through those pleadings, he impugned the Respondent's Vacancy Notice Ref. KETRACO/5/1C/40/74/(05/2026) inviting applications for the position of Managing Director and Chief Executive Officer. In his Statutory Statement, the Ex-parte Applicant expressly described himself as a person acting in the public interest to uphold the Constitution, the rule of law, and lawful governance in public appointments. The grounds set out in that Statement reflect that description. They are framed exclusively as a public-interest challenge to the impugned recruitment process and nowhere suggest that the Ex-parte Applicant asserted any personal or employment-related interest in the advertised office. The Verifying Affidavit is to the same effect. The Ex-parte Applicant deponed that he has an interest in ensuring that public appointments are conducted lawfully and that it is in the public interest that the recruitment process... be halted. The pleadings contain no averment that he was a prospective employee, that he had applied or intended to apply for the position, or that he possessed the qualifications prescribed in the vacancy notice. The case presented to the Court was, from beginning to end, one grounded solely in public interest. Before judgment, a material development intervened. On 3 July 2026, the Supreme Court delivered its judgment in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR), which settled the jurisdictional boundary between the Court and the High Court in disputes concerning pre-employment recruitment processes. Accordingly, the Notice of Preliminary Objection dated 10 July 2026 was filed. ELRC NAIROBI RULING JR NO. E053 OF 2026 2

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The respondent submitted that on 16 July 2026, in Petition No. E153 of 2026, Consumer Federation of Kenya v Cabinet Secretary for Energy and Petroleum & 3 Others; Eng. In Kipkemoi Kibias (Interested Party), a matter concerning the same KETRACO recruitment process, the court applied the principles enunciated in the Gikenyi Case. It struck out the petition for want of jurisdiction. A public-interest litigant instituted the petition in circumstances materially indistinguishable from those now before the Court. The respondent submitted that an objection to jurisdiction lies at the heart of the principle established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 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. Without it, every step taken thereafter is without legal foundation, as held in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR. The question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is obliged to satisfy itself fully. A court of law downs tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the court held that jurisdiction is neither presumed nor acquired by ingenuity. It flows only from the Constitution or from legislation enacted pursuant to it. Therefore, in the Gikenyi Case, the court has demarcated the jurisdictional boundary between the court and the High Court in disputes arising from pre-employment recruitment processes. 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. Petitioners before the court must be employees, prospective employees, applicants ELRC NAIROBI RULING JR NO. E053 OF 2026 3

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for employment, or any other person contemplated under Section 12 of the ELRC Act. Therefore, a public-interest challenge to a recruitment process is not a dispute within this court's jurisdiction. By constitutional design, it belongs to the High Court. The Ex-parte Applicant has not pleaded that he was an employee, a prospective employee, an applicant for the advertised position, or a person seeking employment within the contemplation of Section 12 of the ERLC Act. He stands on the same juridical footing as the litigants in the Gikenyi Case. The Court lacks jurisdiction to entertain these proceedings. The respondent submitted that the Ex-parte Applicant's belated change in characterisation, viewed against the backdrop of the Preliminary Objection, speaks for itself. Having initially invoked this Court's jurisdiction as a public-interest litigant, the subsequent attempt to assume the mantle of a prospective employee arose only after the jurisdictional challenge was raised. That shift does not cure the jurisdictional defect; rather, it underscores the merit of the Respondent's objection. In Petition No. E153 of 2026, Consumer Federation of Kenya v Cabinet Secretary for Energy and Petroleum & 3 Others; Eng. Kipkemoi Kibias (Interested Party), the Court considered its jurisdiction over a petition brought by a public-interest consumer rights organisation challenging the legality of the recruitment. The court appreciated that decisions of the Supreme Court bind it. The objections herein should be allowed, and the matter struck out. The ex parte applicant submitted that the respondent's objections are not purely legal. The respondent contends that the Ex-parte Applicant is a mere public-interest litigant and therefore falls outside Section 12(2) of the ELRC Act. The objections are wholly hinged on Moi Teaching and Referral Hospital & 3 others vs Dr Magare Gikenyi & 76 others (SC Petition No. E030 as consolidated with E033 of 2025) (Judgment) ELRC NAIROBI RULING JR NO. E053 OF 2026 4

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delivered on 3 July 2026; hence, the objections are misconceived, bad in law, and ought to be dismissed. The Respondent’s objection, though framed as jurisdictional, in substance raises locus standi. The real question before this Court is: in what capacity has the Applicant brought these proceedings? That question cannot be answered in the abstract; it requires a careful review of the pleadings and the factual assertions on the record. The Respondent has selectively highlighted one description of the Applicant in the Statutory Statement, while deliberately ignoring other parts of the pleadings that reveal the Applicant’s true capacity. The objections fail the principles under Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. At paragraph 12 of the Statutory Statement, the Applicant expressly alleges violation of his right to fair administrative action. In paragraphs 14 to 15, the Applicant pleads that the unlawful criteria restricted the pool of eligible candidates, thereby frustrating equal opportunity. In the Verifying Affidavit, the Applicant deposes that the vacancy notice imposed extraneous requirements and omitted mandatory Mwongozo criteria, excluding otherwise eligible candidates. These are factual averments. This Court must rely on these pleadings to determine whether the Applicant is a prospective employee unlawfully excluded or a mere publicinterest actor. Without this factual inquiry, the Court cannot conclusively determine standing. The objection is not a pure point of law. In Njau & 5 others v City Council of Nairobi [1983] KECA 56 (KLR), the court held that capacity to sue is a mixed question of law and fact. The position was also emphasised in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR, that a preliminary objection must be anchored on a pure point of law, not facts. ELRC NAIROBI RULING JR NO. E053 OF 2026 5

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The Respondent’s preliminary objection rests upon contested facts which this Court can only ascertain by reference to the pleadings and evidence on record. Such an objection does not qualify as a pure point of law. It is, instead, a hybrid of law and fact, and therefore incompetent as a preliminary objection. The ex parte applicant submitted that he qualifies as a prospective employee under Section 12(2) of the ELRC Act. Article 162(2)(a) of the Constitution and Section 12(2) of the ELRC Act confer jurisdiction on this Court to hear disputes involving employees, employers, trade unions, employer organisations, federations, prospective employees, applicants for employment, and persons aggrieved by decisions of the Director of Employment. The Applicant has pleaded and sworn that the Respondent’s unlawful vacancy notice imposed extraneous criteria and omitted mandatory Mwongozo requirements, thereby restricting eligibility and excluding him and other citizens from fair competition. This makes him a prospective employee unlawfully excluded, squarely within Section 12(2) of the ELRC Act. The ex parte applicant submitted that a possible public interest-bearing outcome can be equated to suing in a public-interest capacity. The case may indeed have a public interest-bearing outcome, ensuring constitutional compliance and lawful governance in public appointments. However, that fact alone does not make the ex parte applicant a “publicinterest actor” in the sense contemplated in the Gikenyi Case. The ex parte Applicant has pleaded and sworn factual exclusion from eligibility, thereby qualifying as a prospective employee unlawfully excluded under Section 12(2) of the ELRC Act. Standing must be determined from the overall documentation and evidence on record, not from isolated phrases. The Respondent’s Preliminary Objection, which assumes otherwise, is misconceived and ought to be dismissed. The ex parte Applicant has not expressly pleaded that he sues in the capacity and in ELRC NAIROBI RULING JR NO. E053 OF 2026 6

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the interest of the general public. His pleadings demonstrate factual exclusion, thereby grounding locus standi in personal stake. Determination The respondent's objections herein are largely premised on the Supreme Court judgment of 3 June 2026 in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). The judgment has had a profound impact on the world of work. The judgment delineated matters previously heard and determined on the merits, thereby creating a distinction between what the court can address and what the High Court should hear. The main distinctive feature in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR) is that employment disputes initiated in the public interest fall under the provisions of article 163(4)(a) of the Constitution. Hence, 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. It is emphasised that in Gikenyi’s case, he had described himself as follows: … human rights activist, patriotic citizen of Kenya, law-abiding citizen, public-spirited individual, and human rights defender. Such description denied him standing before the court. In this case, the subject application dated 5 June 2026 was filed two days after the Supreme Court of Kenya decided Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). The ex parte applicant sought leave to move the court for judicial review and orders of certiorari and prohibition in respect of the respondent's decision contained in the vacancy notice and job reference KETRACO/5/1C/40/74/(05/2026) inviting applications for the position of ELRC NAIROBI RULING JR NO. E053 OF 2026 7

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Managing Director and Chief Executive Officer. The application was supported through the Verifying Affidavit and Statutory Statement. In the Verifying Affidavit, the ex parte applicant avers that in May 2026, the respondent advertised the position of Managing Director and set minimum qualifications that deviated from the mandatory requirements under Mwongozo, thereby distorting the applicable legal framework governing such appointments. Hence, the advertisement was defective, unlawful, and invalid. In the Statutory Statement, the ex parte applicant describes himself as a person acting in the public interest to uphold the Constitution, the rule of law and lawful governance in public appointments. He does not plead any employment relationship or any interest in the position advertised by the respondent. Whereas the respondent has issued no decision with regard to the advertisement in job reference KETRACO/5/1C/40/74/(05/2026) challenged by the ex parte applicant, and where he seeks orders of certiorari and prohibition, his standing, based on the pleadings, places him as acting in the public interest. This cannot be cured in a Further Affidavit to clarify standing. The initial pleadings bind the ex parte applicant only insofar as the judicial review proceedings were initiated in the public interest. For a start, the ex parte applicant has done no wrong. As outlined above, the court has traditionally assumed jurisdiction over proceedings such as those initiated herein by the ex parte applicant, on the basis that under article 165(5) (b) of the Constitution, the court is clothed with the requisite jurisdiction to hear and determine employment and labour relations disputes. However, guided by the Supreme Court in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR), the court is bound vertically. ELRC NAIROBI RULING JR NO. E053 OF 2026 8

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The court appreciates that before practitioners and those litigating in the public interest can fully appreciate the distinctions in jurisdiction now established by the Supreme Court of Kenya, it will take time. 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. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and ………………………………….. ……… ELRC NAIROBI RULING JR NO. E053 OF 2026 9

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