Attorney General & another v Muiu & another (Civil Appeal E146 of 2021) [2025] KECA 816 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that disputes over a constitutional commissioner's salary belong in the High Court, not the Employment Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employment and Labour Relations Court had jurisdiction to entertain the petition concerning stoppage of a constitutional commissioner's salary and benefits
- 2.Whether the learned Judge erred in finding that the stoppage of the 1st respondent's salary and allowances was unlawful (not necessary to determine given the jurisdiction finding)
- 3.Whether the learned Judge erred in awarding Kshs. 35,145,000 as withheld salary (not necessary to determine given the jurisdiction finding)
Key legal issues
#Jurisdiction of the ELRC over disputes involving constitutional office holders
The ELRC had no jurisdiction because the 1st respondent was a State Officer in an independent commission whose appointment, remuneration and removal are governed by Articles 250 and 251 of the Constitution; the dispute was a constitutional question for the High Court.
Following its own decision in the Okiya Omtata case and the Kakamega County Government appeal, the court held that appointment and removal of members of independent commissions are sui generis constitutional processes, not labour disputes. The remuneration of a commissioner is protected by Article 250(8) and removal only through Article 251; such matters fall outside section 12 of the ELRC Act even where they touch on salary.
Internal inconsistency in the trial court's reasoning on jurisdiction
The trial court's reasoning was self-defeating: having found the contract grounded on the Constitution and section 30 of the Employment Act inapplicable, it necessarily followed that section 12(1)(a) of the ELRC Act, which grants jurisdiction, was also inapplicable.
The court reasoned that if the contractual terms were purely constitutional and the Employment Act did not apply, the jurisdictional foundation of the ELRC Act could not simultaneously apply. This logical inconsistency vitiated the trial court's assumption of jurisdiction.
Appropriate forum for enforcement of rights of constitutional office holders
Enforcement of the 1st respondent's rights under Article 250(8) of the Constitution lies before the High Court under Articles 22, 23 and 165, as pronounced by the Supreme Court in County Assemblies Forum.
Associating itself with the Supreme Court's pronouncement, the court held that enforcement of rights and fundamental freedoms, even touching on employment and labour, is within the competence of the High Court. The fact that a dispute touches employment does not confer ELRC jurisdiction where the underlying complaint is constitutional.
Duty of a first appellate court
A first appellate court must analyse and re-assess the evidence and reach its own conclusions, while making allowance for not having seen or heard the witnesses.
The court restated the classic principles in Selle v Associated Motor Boat Co and Alfarus Muli on interference with trial court findings, framing its approach before resolving the jurisdictional question, which it found dispositive.
Legal principles established
#- Disputes concerning the appointment, remuneration and removal of members of constitutional commissions and independent offices, whose terms are underpinned by the Constitution, are not employment and labour relations disputes within section 12 of the ELRC Act; they are constitutional questions for the High Court and the ELRC has no jurisdiction over them.
- The ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution; it may do so only in matters arising within employment and labour relations disputes properly before it.
- Where a court finds it lacked jurisdiction, it should not proceed to decide the merits so as not to prejudice future litigation in the competent forum.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the Employment and Labour Relations Court made on 2nd July 2020 in Nairobi ELRC Petition No. 115 of 2018 set aside
- 3.Substitution of an order striking out the petition
- 4.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Petition No. 115 of 2018
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction; jurisdiction of the trial court considered under section 12 of the Employment and Labour Relations Court Act and Articles 162(2), 165, 23, 250 and 251 of the Constitution
Relief refused
#Adjudication of the merits of the lawfulness of the stoppage of salary and the award of Kshs. 35,145,000
The ELRC lacked jurisdiction; the dispute was constitutional and belonged to the High Court, so the appellate court declined to address the merits to avoid prejudicing any fresh litigation
Costs
Each party to bear own costs, since the issue of jurisdiction was never taken up before the trial court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We, accordingly, find that the Employment and Labour Relations Court had no jurisdiction to determine the dispute which ought to have been heard and determined by the High Court.
It does not matter that the dispute touched on employment and labour. The 1st respondent’s complaint was that the only action that could be taken against him was the invocation of Article 251 of the Constitution.
whereas the Employment and Labour Relations Court has jurisdiction, in appropriate cases, to interpret and apply the Constitution in matters that arise in the context of disputes on Employment and Labour Relations, the ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution.
In the premises, we allow the appeal, set aside the judgement of the Employment and Labour Relations Court made on 2nd July 2020, in Nairobi ELRC Petition No. No.115 of 2018. We substitute therewith an order striking out the petition. We direct each party to bear own costs since the issue of jurisdiction was never taken up before the trial court.
Those shall be our orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Muiu & another (Civil Appeal E146 of 2021) [2025] KECA 816 (KLR)", Case Analysis (2025). Nairobi Civil Appeal No. E146 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/816/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.