Stanley Omufwoko Ngaira v The Nairobi City County Government & 4 others

CHIEF OFFICER, PUBLIC SERVICE .................................................7 TH RESPONDENT RULING INTRODUCTION 1. The Court is called upon to determine a preliminary objection raised by the 1st, 2nd, 4th, 5th, 6th and 7th Respondents dated 11th July 2025. The objection challenges the jurisdiction of this Court to hear and determine the Petition filed by the Petitioner on the ground that the matters raised therein fall within the exclusive jurisdiction of the Employment and Labour Relations Court (ELRC) established under Article 162(2)(a) of the Constitution. The Respondents contend that the Petition, which impugns a recruitment exercise by the Nairobi City County Public Service Board for 483 positions within the Markets and Trading Services Department, is in substance an employment and labour relations dispute requiring adjudication by the specialized court. 2. The Petitioner opposes the preliminary objection, maintaining that his case is not an employer-employee dispute but a constitutional challenge mounted in the public interest to enforce the values and principles enshrined in Articles 10, 73, and 232 of the Constitution, as well as the right to fair administrative action guaranteed by Article 47. The Petitioner, who is not an employee of the County Government, asserts that his standing Milimani HCCHRET NO. E413/2025 RULING Page 2 of 21

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derives from Articles 22 and 258 of the Constitution, which permit any person to institute proceedings alleging contravention of the Constitution. BACKGROUND 3. The factual substratum of this dispute is largely uncontested. On 12 th May 2025, the Office of the County Executive Member for Business and Hustler Opportunities issued a memorandum (Ref: NCC/CEC/BHO/ADM/21/2025/95) to the Nairobi City County Public Service Board proposing the recruitment of officers across various cadres within the Directorate of Markets and Trading Services. The proposal sought the enhancement of the workforce, specifying positions ranging from Deputy Director to Market Operations Support Staff, totaling 483 positions. 4. Acting on this proposal, the 3rd Respondent (the Nairobi City County Public Service Board) placed an online vacancy advertisement on the County Portal on or about 27th May 2025, describing the process as an internal recruitment exercise. The Petitioner alleges, and has provided a table of names in Paragraph 20 of the Petition, that certain individuals whose names appeared on the longlist are external candidates whose contracts with the County had expired or who had no current appointments. The Petitioner cites the examples of Penina Muli, Muhele Phyllis, Nyakwara Douglas, Bii Irene Chepkoech, and others as individuals who were not serving county employees at the time of the impugned recruitment. Milimani HCCHRET NO. E413/2025 RULING Page 3 of 21

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5. The Petition, dated 1st July 2025, seeks declaratory reliefs that the recruitment process violated Articles 10, 41, 47, 73, and 232 of the Constitution, together with an order of certiorari to quash the advertisements, a conservatory order to stop the ongoing recruitment, and ancillary orders compelling the Respondents to produce user department requests, budget allocations, and full recruitment lists. In response, the Respondents filed a Notice of Preliminary Objection, a Replying Affidavit sworn by Violet Oyangi (the Acting Chief Executive Officer and Secretary of the 3rd Respondent), and written submissions in support of the objection. THE PETITIONER’S CASE 6. The Petitioner contends that the preliminary objection is fundamentally misconceived and fails the well-established test for a valid preliminary objection as articulated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Petitioner argues that the objection does not raise a pure point of law because it invites contested factual inquiries, particularly whether external individuals were unlawfully included in the supposedly "internal" process as alleged in Paragraph 20 of the Petition. 7. The Petitioner emphasises that he is not, and has never been, an employee of the Nairobi City County Government. In his Further Affidavit sworn on 12th September 2025, the Petitioner states at Paragraph 6, "I am not, and have never been, an employee of Nairobi City County, and therefore my Milimani HCCHRET NO. E413/2025 RULING Page 4 of 21

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standing arises solely from my right as a public-spirited citizen under Article 258 of the Constitution, to challenge violations of the Constitution and statutory provisions in public appointments." The Petitioner submits that his grievance is not contractual or relational but systemic and constitutional, targeting the legality and transparency of a public recruitment exercise that implicates public funds and constitutional values. 8. Relying on the decision of the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, the Petitioner argues that the High Court retains jurisdiction to scrutinise the legality of public appointments and to enforce constitutional values in governance. The Petitioner notes that in the Matemu case, the Court of Appeal held that constitutional litigation in the public interest must be purposively interpreted to give effect to accountability, and that such causes are properly lodged in the Constitutional and Human Rights Division where constitutional questions are the primary issues for determination. 9. The Petitioner further submits that Section 12 of the Employment and Labour Relations Court Act, 2011, which delineates the jurisdiction of the ELRC, is confined to disputes arising from employer-employee relationships, trade disputes, and matters concerning employment contracts. Since the Petitioner has no employment relationship with the Respondents and seeks no remedy personal to himself as an employee, the Petitioner contends that the ELRC would lack jurisdiction to entertain this matter. The Petitioner characterizes the case as one concerning administrative law, constitutional compliance, and public accountability falling squarely within the Milimani HCCHRET NO. E413/2025 RULING Page 5 of 21

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supervisory jurisdiction of the High Court under Article 165(3)(d) of the Constitution. THE RESPONDENTS’ CASE 10.The Respondents contend that the Petition, however artfully framed, is in substance an employment dispute that ought to have been filed before the Employment and Labour Relations Court. The Respondents rely on the Replying Affidavit of Violet Oyangi, who depones at Paragraph 6 that an internal recruitment is only meant for employees working within Nairobi City County Government Public Service, and at Paragraph 13 that the Petition is based on employment matters which ought to be canvassed in the Employment and Labour Relations Court. 11.In their written submissions dated 16 th September 2025, the Respondents invoke the principle established in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 that jurisdiction is everything and that a court without jurisdiction must down its tools. The Respondents argue that Article 162(2)(a) of the Constitution mandates Parliament to establish a court with the status of the High Court to hear and determine disputes relating to employment and labour relations, and that the ELRC has since been established as that court. 12.The Respondents relied on the decision in United States International University (USIU) v Attorney General & 2 others [2012] eKLR for the Milimani HCCHRET NO. E413/2025 RULING Page 6 of 21

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proposition that even where a dispute concerning employment and labour relations raises constitutional questions, it must be filed before the Employment and Labour Relations Court. Further reliance was placed on the decision in Shollei v Judicial Service Commission & Another (Petition 34 of 2014) eKLR, in which the court held that a mere allegation of a constitutional violation does not deprive a specialised court of jurisdiction where the matter arises from an employment relationship. The Respondents contend that the Petitioner's allegations regarding transparency, fairness, and adherence to constitutional procedures, though couched in constitutional language, are essentially complaints about how the recruitment process was conducted between the County Government and prospective employees. 13.The Respondents further argue that the Petitioner has not demonstrated any constitutional violation independent of the employment relationship. They submit that the recruitment process was internal, targeted serving officers, and complied with budgetary requirements, as stated in Paragraphs 9 and 10 of Violet Oyangi's Replying Affidavit. The Respondents characterize the Petition as an abuse of the court process, intended only to derail a legitimate recruitment exercise, and urge the Court to strike it out with costs. ANALYSIS AND DETERMINATION Milimani HCCHRET NO. E413/2025 RULING Page 7 of 21

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14.From the pleadings and submissions of the parties, two primary issues emerge for determination by this Court: i. Whether the Respondents’ Notice of Preliminary Objection dated 11 th July 2025 meets the legal threshold for a preliminary objection ii. Whether this Court has jurisdiction to hear and determine the Petition Whether the Respondents’ Notice of Preliminary Objection dated 11 th July 2025 meets the legal threshold for a preliminary objection 15.Before addressing the jurisdictional question, the Court must ascertain whether the Respondents’ objection qualifies as a proper preliminary objection capable of being determined without delving into the merits of the Petition. The locus classicus on this question remains the decision of the Court in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), where the court defined a preliminary objection as one that raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. The court further held that such an objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 16.Likewise, the Court in the case Oraro vs. Mbaja [2005] 1 KLR on the nature of preliminary objections observed that: “A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of Milimani HCCHRET NO. E413/2025 RULING Page 8 of 21

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evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” 17.In the present case, the Respondents contend that the Petition falls within the exclusive jurisdiction of the ELRC. This contention raises a question of constitutional interpretation concerning the delineation of jurisdiction between the High Court and the specialised courts established under Article 162 of the Constitution. That question is quintessentially a pure point of law, for it requires the Court to examine the pleadings, identify the substance of the dispute, and determine whether, as a matter of law, the matter falls within one jurisdictional sphere or another. No ascertainment of contested evidentiary facts is necessary to resolve this threshold issue. The Court does not need to determine whether external candidates were indeed included in the internal recruitment process, nor whether the recruitment violated specific constitutional provisions. The jurisdictional inquiry is antecedent to those factual determinations and turns entirely on the nature and character of the dispute as disclosed by the pleadings. Milimani HCCHRET NO. E413/2025 RULING Page 9 of 21

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18.However, the Court must sound a note of caution. The principle that a preliminary objection must be founded on uncontested facts does not mean that the existence of any factual allegation automatically defeats such an objection. Rather, the correct approach is to examine whether the facts that are disputed are material to the jurisdictional question or whether the jurisdictional question can be resolved by reference to the legal framework irrespective of how those factual disputes are resolved. In this case, even if it were ultimately proved that external individuals were included in the recruitment process or that the process lacked transparency, those facts would not change the character of the dispute for jurisdictional purposes. The dispute would still be about a recruitment exercise. Accordingly, the presence of some factual contestation does not invalidate the preliminary objection. 19.The Respondents’ preliminary objection meets the threshold established in Mukisa Biscuit. It raises a pure point of law concerning the constitutional division of jurisdiction between the High Court and the ELRC. The objection can be determined on the basis of the pleadings and legal framework without requiring the Court to make factual findings on the merits of the Petition. The Court therefore proceeds to the merits of the jurisdictional challenge. Whether this Court has jurisdiction to hear and determine the Petition Milimani HCCHRET NO. E413/2025 RULING Page 10 of 21

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20.The question of jurisdiction is fundamental, for as the Court famously declared in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra), “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” This principle has been consistently reaffirmed by the Supreme Court in numerous decisions and remains the cornerstone of our jurisdictional jurisprudence. 21.The Supreme Court addressing its mind on the issue of jurisdiction in the case of Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & others (2012) eKLR opined as follows: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain Milimani HCCHRET NO. E413/2025 any proceedings RULING … where the Constitution Page 11 of 21

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exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 22.Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in criminal and civil matters. However, this broad grant of jurisdiction is expressly subject to the carve-out created by Article 162(2), which provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to (a) employment and labour relations, and (b) the environment and the use and occupation of, and title to, land. Parliament gave effect to Article 162(2)(a) through the Employment and Labour Relations Court Act, No. 20 of 2011. 23.The question that arises in this case is whether the dispute concerning the recruitment of 483 employees by the Nairobi City County Public Service Board qualifies as a dispute relating to employment and labour relations falling within the exclusive jurisdiction of the ELRC. Section 12(1) of the ELRC Act provides that the court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Act. Section Milimani HCCHRET NO. E413/2025 RULING Page 12 of 21

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12(1)(a) specifically includes disputes “arising out of or relating to an employment relationship.” The phrase “employment relationship” is broad enough to encompass the entire spectrum of interactions between employers and employees, including recruitment, selection, appointment, terms and conditions of service, and termination. 24.The Petitioner argues that his case is not an employer-employee dispute because he is not an employee of the County Government and seeks no relief personal to himself as an employee. The Respondents counter that the substance of the dispute is about recruitment, which is quintessentially an employment and labour relations matter, and that the Petitioner’s status as a non-employee or public-spirited citizen cannot confer jurisdiction upon a court that otherwise lacks it. 25.The Court of Appeal in Registrar of Trade Unions v Nicky Njuguna & 4 others [2017] eKLR held as follows: “This is not the first time an issue of jurisdiction of the Employment Labour Relations Court (ELRC) to determine matters involving the interpretation of the Constitution has been raised. Indeed, way back in 2012, the same issue was before the High Court in United States International University (USIU) v Attorney General & 2 Others [2012] eKLR and Majanja J., took the following position:“Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from Milimani HCCHRET NO. E413/2025 RULING Page 13 of 21

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dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in Section 12 of the Industrial Court Act 2011 or to interpret the Constitution, would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. This same issue was central in the following matters; Prof. Daniel N. Mugendi v Kenyatta University & Others Nairobi Civil Appeal No. 6 of 2012 (Unreported); U.S.I.U v A.G &Others (2012) eKLR Seven Seas Technologies v Eric Chege Nairobi HC Misc. Appl. No. 29 of 2013 (Unreported) and Judicial Service Commission v Gladys Boss Shollei & Another Civil Appeal No 50 of 2014. In all the aforesaid decisions by this Court differently constituted, it was emphasized that although Article 165(3) (c) of the Constitution gives the High Court jurisdiction to determine questions involving violation of the Bill of Rights, the Article did not oust the jurisdiction of ELRC to deal with such issues especially when the interpretation of the Constitution is intricately interwoven with a labour issue or is central to the determination thereof. In any case the Court found that under Article 20, the Constitution gives all courts and bodies powers to deal with constitutional matters; thus the court had jurisdiction to deal with all constitutional matters that arise before it in employment and labour disputes. We will say no more on the jurisdiction of the ERLC to interpret the Constitution on fundamental rights that are germane and intricately Milimani HCCHRET NO. E413/2025 RULING Page 14 of 21

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connected with labour issues, as it has adequately been dwelt with and we fully agree with the above findings.” 26.The Petitioner’s grievances that the recruitment process was opaque, that external candidates were treated as internal, that there was no public participation or stakeholder engagement, that the recruitment was conducted without proper budgetary provision or needs analysis are all not grievances that arise from and relate to an employment relationship. 27.From clear reading of Section 12(1) of the Employment and Labour Relations Court Act there is no relationship that has been established to exist between the Petitioner and the Respondent herein falling to what can be referred to employment and Labour Relationship between Petitioner and the Respondent. The constitutional questions raised in the Petition and relief sought in the Petition do not in any way fall within any of the categories or classes as captured by Section 12 of the Employment and Labour Relations Court Act No. 20 of 2011. I find that no issue has been demonstrated to arise as labour relations between the Respondents and the Petitioner. 28.The Court acknowledges that the Petition raises important questions concerning the values and principles of public service under Article 232, including the requirements of transparency, accountability, and fair, meritbased appointments. These are weighty constitutional questions that deserve judicial consideration. Milimani HCCHRET NO. E413/2025 RULING Page 15 of 21

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29.The Court is alive to the fact that both the High Court and Employment and Labour Relations Court have concurred and coordinate jurisdiction to determine violations of constitutional rights but the Employment and Labour Relations Courts jurisdiction is invoked when the dispute relates to employment and labour relations. I find from the constitutional questions and issues raised that this dispute does not relate to employment and labour relations. 30.The issue of shared jurisdiction between the High Court and Employment and Labour Relations Court has severally been raised and determined by Courts. In the case of Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR, Hon. Justice Odunga held that: “51. Similarly, pursuant to Article 23(3) of the Constitution as read with Section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport to entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matter and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialised courts. However, as stated above, the Employment Milimani HCCHRET NO. E413/2025 RULING Page 16 of 21

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and Labour Relations Court may not embark on a generalized handling to of Petitions but is entitled to and is jurisdictionally empowered address such matters if they arise directly and in relation to the matters within the court’s jurisdictional competence and specialization. Accordingly, where the matters raised fall both within their jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provision of Article 159 of the Constitution. As was held in Nairobi High Court Petition No. 613 of 2014 – Patrick Musimba vs. The National Land Commission and Others: “…it would be ridiculous and fundamentally wrong, in our view, for any court to adopt a separationalistic view or approach and insist on splitting issues between the Courts where a court is properly seized with a matter but a constitutional issue not within its obvious exclusive jurisdiction is raised.” 52. The Musimba decision therefore concluded on this issue that: “…both the High Court and the ELC Court have a concurrent and or coordinate jurisdiction and can determine constitutional matters when raised and do touch on the environment and land. Neither the Constitution or the ELC Act limit the High Court’s jurisdiction in this respect while a closer reading of the ELC Act reveals that the ELC Court’s jurisdiction was in 2012 limited by Parliament in so far as constitutional issues touching on land and environment are concerned but the Court of Appeal in Mugendi expressed the view that the ELC Milimani HCCHRET NO. E413/2025 RULING Page 17 of 21

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when dealing with disputes concerning the environment and land may also deal with claims of breaches of fundamental rights touching on the subject at hand. We hold that in matters of constitution the ELC has jurisdiction not just when it involves clean and healthy environment but also land.” 53. This window, it has been held, is to empower the Employment and Labour Relations Court to fully handle employment matters that are exclusively reserved for it under Article 162(2) of the Constitution of Kenya 2010. This positon, in my view is the true interpretation of Section 12 of the Employment and Labour Relations Act Cap 234B, Laws of Kenya. 31.The Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) further stated as follows: “In the absence of an employee-employer relationship, it is our considered view that the court that had jurisdiction to entertain and determine the issues raised in the consolidated petitions was in fact the High Court. The establishment of the High Court is found at article 165(1) of the Constitution. Under article 165(3), the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been violated, infringed or threatened. Under article 165(d)(i), the High Court has jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution. The issues raised in the consolidated petitions, especially the issue relating to the constitutionality of section 43(5) of the Milimani HCCHRET NO. E413/2025 RULING Page 18 of 21

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Elections Act, 2011 are the kind of issues contemplated under article 165(3(d) of the Constitution determination of which would be within the exclusive constitutional mandate of the High Court. This is jurisdiction flowing directly from the Constitution, which the Supreme Court alluded to in the matter of Interim Independent Electoral Commission (supra) and Samuel Kamau Macharia & another (supra). The Constitution appreciates that there are matters within the exclusive jurisdiction of the High Court on the one hand and those reserved and/or falling within the jurisdiction of the courts contemplated in article 162(2) on the other hand, notwithstanding the fact that the latter courts enjoy the same status as the High Court. This court in Karisa Chengo & 2 others v Republic [2015] eKLR held thus: “...The jurisdiction of the High Court as established under article 165 of the Constitution is limited in two fronts. First, it shall not exercise jurisdiction on matters reserved for the Supreme Court and matters falling within the jurisdiction of the two courts contemplated in article 162(2). It is therefore clear that the High Court no longer had the original and unlimited jurisdiction in all matters as it used to have under the repealed Constitution. It cannot deal with matters set out under section 12 of the ELRC Act and section 13 of the ELC Act. Conversely, the courts contemplated in article 162(2) of the Constitution cannot deal with matters reserved for the High Court.” This court in the Karisa Chengo case (supra) held that status of a court is not synonymous to jurisdiction. In this context therefore, although the Employment and Labour Relations Court exercises the same Milimani HCCHRET NO. E413/2025 RULING Page 19 of 21

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power as the High Court in performance of its judicial functions, it has specialized jurisdiction and is not the High Court. It is important to point out that the finding of this court in the Karisa Chengo case was upheld by the Supreme Court. Therefore, for want of an employee- employer relationship, we find and hold that the Employment and Labour Relations Court arrogated itself jurisdiction that exceeded that conferred upon it by law, which renders its decision nullity ab initio.” 32.As far as the jurisdiction of the Employment and Labour Relations Court is concerned, it is confined to matters where a relationship of employeremployee exists, and if constitutional questions arise because of that relationship, that is what is to be exclusively dealt with by the Employment and Labour Relations Court. 33.In the instant case however, it is apparent that the Petition is raising questions touching on transparency, accountability, and fair, merit-based appointments without being tied to any specific employer-employee relationship. This matter falls within the exclusive jurisdiction of the High Court under Article 165(3) (d) (ii) of the Constitution. 34.This Court thus finds that the Respondents’ Notice of Preliminary Objection lacks merit and is hereby dismissed with no orders as to costs. 35.Directions on the Petition to be issued immediately after delivery of this Ruling. Milimani HCCHRET NO. E413/2025 RULING Page 20 of 21

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DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner – Mr. Mongare h/b Mr. Makori Counsel for the Respondents – No Appearance Court Assistant – Mr. Sanja Milimani HCCHRET NO. E413/2025 RULING Page 21 of 21

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