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Court of AppealDismissedCivil Appeal No. E107 of 2024 (lead file) and Civil Appeal No. E116 of 2024· [2025] KECA 937 (KLR)

Moi Teaching and Referral Hospital & 1 other v Dr Magare Gikenyi B & 8 others

Court of Appeal
23 May 2025
8,922 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is one judgment of the Court of Appeal at Nakuru (Mativo, Gachoka and Korir, JJA) dismissing two consolidated interlocutory appeals, Civil Appeal No. E107 of 2024 (lead file) and Civil Appeal No. E116 of 2024, which challenged a ruling of Mohochi, J. dated 20th June 2024 in Nakuru High Court Constitutional Petition No. E011 of 2024 dismissing preliminary objections to a petition challenging the appointment of chief executives of State corporations announced in a press release of 17th May 2024. The Court framed three questions: whether the High Court had jurisdiction; whether the Nakuru High Court had geographical jurisdiction; and whether the ex parte conservatory orders of 21st May 2024 were properly issued. On the first, the Court held that the ELRC's exclusive jurisdiction under Section 12 of the ELRC Act presupposes an existing employer-employee relationship, which cannot arise before a contract of service is created; the petitioners were citizens, not employees, so the High Court had jurisdiction, distinguishing Alex Mrefu and applying the Supreme Court's KTGA decision. On the second, the Court held that territorial objections do not go to the root of competence, that constitutional petitions against State corporations may be filed in any High Court, and that a strict reading of Rule 8(1) of the Mutunga Rules leading to multiplicity of suits would offend Articles 48 and 50 and the Rules' overriding objective. On the third, the Court found no basis to disturb the trial judge's discretion in granting conservatory orders. The recusal issue was not entertained as not subject of the appeal. The appeals were dismissed with each party bearing their own costs given the public interest. The decision of the High Court stands affirmed.

Key legal issues

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01

Whether the High Court was divested of jurisdiction over a constitutional petition challenging the recruitment of chief executives of State corporations

Holding

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.

Reasoning

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.

p. 15
02

Whether the Nakuru High Court had territorial/geographical jurisdiction under Rule 8(1) of the Mutunga Rules

Holding

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.

Reasoning

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.

p. 17
03

Whether the ex parte conservatory orders issued on 21st May 2024 met the threshold for conservatory orders

Holding

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.

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.Both consolidated appeals dismissed as devoid of merit
  2. 2.Each party to bear their own costs on grounds of public interest
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

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moi Teaching and Referral Hospital & 1 other v Dr Magare Gikenyi B & 8 others", 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.