Gikenye & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 592 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear challenges to State corporation board appointments because board members are public officers.
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 preliminary objection qualifies as a pure point of law under the Mukisa Biscuits test
- 2.Whether the ELRC has jurisdiction under Article 162(2) of the Constitution and section 12 of the ELRC Act over a petition challenging appointments of chairpersons and members of State Corporations boards, absent an employer-employee relationship
Key legal issues
#Whether the preliminary objection raising lack of jurisdiction is a pure point of law
The objection was based on a disputed fact (existence of an employer-employee relationship) and therefore failed the Mukisa Biscuits test.
Respondents submitted that appointed board members were not employees as they earned no wage or salary. The court found that whether they earn a wage or salary is a matter for determination after full hearing and is contested on the pleadings, so the objection rests on disputed facts and cannot succeed as a preliminary objection.
Whether appointment of State Corporations board members falls within the ELRC's jurisdiction
Yes - board members are public officers in public employment under Article 260, regulated by Article 232 and Chapter 6 of the Constitution, so the dispute falls within the court's jurisdiction.
The court reasoned that the case is about appointments to boards of State corporations, and board members are public officers within Article 260, bound by public service employment laws, the values and principles of public service under Article 232 and Chapter 6 on leadership and integrity, the Public Officer Ethics Act and the Official Secrets Act. It followed its own decisions in Havi v JSC and Rukaria v Attorney General that all public and state officers are servants of the people.
Legal principles established
#- Members of State Corporations boards are public officers in public employment within Article 260 of the Constitution, and the ELRC's jurisdiction is not confined to relationships governed by the Employment Act, 2007.
- The Employment Act, 2007 applies as a floor of terms and does not oust employment or work relationships founded on other lawful provisions.
Court orders
#- 1.The preliminary objection is dismissed with costs in the cause
- 2.Parties to take directions towards the expeditious hearing and determination of the main petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12(1) and (2) of the Employment and Labour Relations Court Act
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.
a) The preliminary objection is dismissed with costs in the cause. b) Parties to take directions towards the expeditious hearing and determination of the main petition.
the court considers that such board members are indeed public oficers in public employment within the definition of a public oficer in article 260 of the Constitution
The employment Act did not apply to them.
it is submitted for the respondents that the respondents as appointed to the Boards of State Corporations are not employees as they do not earn a wage or a salary
a preliminary objection must satisfy three elements namely it should raise a pure point of law; it is argued on the assumption that all facts pleaded by other side are correct, and, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
Issues in the judgment
#Case number and neutral citation of this ruling are not stated in the judgment text.
Party roles are inconsistently numbered - respondents 3rd, 5th and 7th are appointed persons while 3rd and 4th respondents are said to have filed submissions, creating ambiguity about party numbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikenye & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 592 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/592/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.