Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that citizens can challenge State recruitment in the High Court, even without any employer-employee relationship.
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 High Court had jurisdiction to hear and determine the petition
- 2.Whether the Nakuru High Court had the 'geographical jurisdiction' to entertain the petition
- 3.Whether the conservatory orders granted on 21st May 2024 were properly issued
Key legal issues
#Whether the High Court was divested of jurisdiction over a constitutional petition challenging the recruitment of chief executives of State corporations
The High Court had jurisdiction. The ELRC's exclusive jurisdiction under Section 12 of the ELRC Act requires an existing employer-employee relationship, which cannot exist prior to the creation of a contract of service. The petitioners were citizens, not employees, challenging an unconstitutional recruitment process.
The court traced Article 162(2)(a) and the ELRC Act, examined the statutory definitions of 'employee' and 'employer' in Section 2 of the Employment Act, and concluded that a job applicant challenging the legality of a recruitment process is not an 'employee'. Distinguishing Alex Mrefu (where successful candidates notified of recruitment were held to be prospective employees), the court held that an employer-employee relationship is contractual and must be legally created before ELRC jurisdiction is activated. The KTGA decision did not oust the High Court because the dispute was not one within the ELRC's subject matter.
Whether the Nakuru High Court had territorial/geographical jurisdiction under Rule 8(1) of the Mutunga Rules
The Nakuru High Court properly entertained the petition. Territorial jurisdiction objections do not go to the root of a court's competence, and Rule 8(1) must be balanced against the right of access to justice under Articles 48 and 50 and the overriding objective of the Rules.
A strict reading of Rule 8(1) would compel the petitioners to file three separate petitions in Eldoret, Nairobi and Mombasa against the same respondents on the same subject matter, risking multiplicity of suits and contradictory decisions. Since there is only one High Court with different administrative stations, no prejudice arises, particularly given e-filing and virtual hearings. Rule 8 cannot override the Constitution, and constitutional petitions against State corporations operating nationally may be filed in any High Court.
Whether the ex parte conservatory orders issued on 21st May 2024 met the threshold for conservatory orders
The orders were properly issued. The High Court had jurisdiction to grant them and the trial judge's discretion was not shown to have been misdirected or plainly wrong.
Applying the test in CREAW (prima facie case with likelihood of success and real danger of prejudice) and the appellate standard for interfering with discretion in the United India Insurance case, the court found no error of law, misapprehension of facts, or failure to consider relevant matters. Citing the CORD decision, the court noted that a very strong case is needed to lift conservatory orders suspending public acts pending determination of constitutionality.
Legal principles established
#- A person challenging the constitutional validity of a recruitment process, with no employer-employee relationship to the hiring entity, may sue in the High Court; the ELRC's jurisdiction under Section 12 of the ELRC Act presupposes an existing employer-employee relationship
- Constitutional petitions against State corporations may be filed in any High Court in Kenya; an objection to territorial jurisdiction does not go to the competence of the court and must be balanced against the right of access to justice
- A strict application of Rule 8(1) of the Mutunga Rules leading to multiple petitions in different High Courts on the same subject matter is to be avoided; Rule 8 cannot override Articles 48 and 50 of the Constitution and must be read with the overriding objective
- An appellate court will not interfere with a trial judge's discretionary decision to grant conservatory orders unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant matters, failed to take into account relevant considerations, or the decision is plainly wrong
Court orders
#- 1.Both consolidated appeals dismissed as devoid of merit
- 2.Each party to bear their own costs on grounds of public interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Constitutional Petition No. E011 of 2024
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court exercising constitutional (Article 165) jurisdiction; underlying dispute concerns Articles 162(2)(a), 165(3) and 165(5)(b) of the Constitution and Section 12 of the ELRC Act
- Consolidated with
- Civil Appeal No. E116 of 2024 - Athi Water Works Development Agency and Eng. Joseph Mungai Kamau vs. Eng. Joseph Mungai Kamau & 76 Others
Relief refused
#Setting aside of the trial court ruling dismissing the preliminary objections
The appeals lacked merit; the High Court had subject-matter and territorial jurisdiction
Recusal of the trial judge
The ruling on recusal is not the subject of the appeal
Setting aside of the conservatory orders issued on 21st May 2024
No improper exercise of judicial discretion was demonstrated
Costs to the appellants
The matter was one of public interest
Costs
Since this is a matter of public interest, the parties will bear their own costs.
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.
There being no employeremployee relationship as required by Section 12 of the Act, we are persuaded that the issues raised in the petition fall within the jurisdiction of the High Court.
In any event, not every applicant for a job gets employed, therefore, the employeeemployer relationship cannot be deemed to exist before it is formally created.
Constitutional petitions against State Corporations can be filed in any high court in Kenya.
A litigant cannot pick Rule 8 alone and run away with it without considering the overriding objective of the Rules as stipulated in Rule 3.
Having arrived at the above findings, the inevitable conclusion is that these consolidated appeals are devoid of merit and are hereby dismissed. Since this is a matter of public interest, the parties will bear their own costs.
Issues in the judgment
#The judgment refers to the consolidated ELRC matters as 'ELR No. 38 of 2014 consolidated with numbers 35, 34, 49 and 50 of 2024', which is internally inconsistent as the companion numbers are given as 2024 despite the 2015 judgment date and 2014 lead number
The hearing date is stated inconsistently within the judgment as 5th March 2025 in the opening paragraph but 5th March 2024 in the paragraph describing counsel's appearances
The Court states that Rule 8 of the Mutunga Rules 'requires a petition to be filed at the nearest High Court station where the cause of action arises' as counsel's argument, but Rule 8(1) as quoted actually requires filing in the High Court within whose jurisdiction the alleged violation took place
The impugned trial ruling is quoted with an internal inconsistency regarding the identity of the 2nd appellant as 'the 4th Respondent' in the conservatory orders
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR)", Case Analysis (2025). Civil Appeal No. E107 of 2024 (lead file) and Civil Appeal No. E116 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/937/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.