Gikenyi B & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 1321 (KLR)
The bottom line
#Kenya's Employment Court upheld its power to hear challenges to state board appointments but dismissed the petition because it lacked evidence.
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 ELRC has jurisdiction over a petition challenging appointments of state corporation board chairpersons absent an employer-employee relationship
- 2.Whether the petitioners had locus standi to file the petition in the public interest under Article 258
- 3.Whether the impugned appointments were made without competitive, merit-based recruitment contrary to Articles 10, 73, 75, 232 and 236 of the Constitution
- 4.Whether the 1st respondent was properly nominated under section 8(1)(f) of the Kenya Roads Act before appointment as KeRRA chairman
- 5.Whether the 1st respondent's integrity and conflict of interest disqualify him from office
Key legal issues
#Jurisdiction of the ELRC over appointments of state corporation board chairpersons
The court upheld its jurisdiction, holding that board members are employees within the meaning of section 12 of the ELRC Act
Relying on its recent decision in Kinyili v Government of Makueni County, the court reasoned that board members of state corporations are public or state officers, servants of the people drawing wages, salaries or allowances from public funds, thus satisfying the employer-employee nexus required by section 12(1) of the ELRC Act notwithstanding that the appointments were made under the State Corporations Act.
Evidential burden of proving non-competitive appointments
The petition failed because the petitioners did not provide material evidence of the impugned recruitment process
While the petitioners alleged lack of competitive and merit-based recruitment, they did not provide material evidence. They had not asked the respondents for the necessary information about the appointments; had they done so and been refused, an adverse inference would have arisen. Consequently the alleged violations of Articles 10, 73, 75, 232 and 236 were not established on evidence.
Scope of declaratory relief
The general declarations sought could not issue because they were framed to apply to future and unstated cases
The court accepted that the pleaded principles on appointments to state corporations apply generally, but prayers (a) and (b) were worded so broadly as to govern unknown future cases, which the court could not sanction without regard to the applicable constitutional and statutory provisions on a case-by-case basis.
Locus standi of the petitioners
The petitioners had locus standi under Article 258 to file the public interest petition
The court found that the petitioners, filing in person in a matter of public interest, could invoke Article 258 of the Constitution, which permits any person to institute proceedings claiming a violation of the Constitution. This finding was against the respondents' objections based on lack of employee status and authorities cited including the Eric Cheruiyot case.
Legal principles established
#- Board members of state corporations are public or state officers and are servants of the people drawing remuneration from public funds, hence within the ELRC's jurisdiction
- A petitioner alleging non-competitive recruitment must first seek relevant information from the appointing authority; failure to obtain it, an adverse inference may accrue, but absent evidence the alleged violation is not established
- Locus standi in public interest petitions is conferred by Article 258 of the Constitution
- Declarations cannot issue in unlimited terms applying to unknown future cases
Court orders
#- 1.The petition is dismissed
- 2.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 258 of the Constitution read with section 12 of the Employment and Labour Relations Court Act (jurisdiction contested by respondents' preliminary objection; court upheld its jurisdiction)
Relief refused
#Declarations that appointments must adhere to Articles 10, 232 and 236 constitutional safeguards
Reliefs worded to apply to future and unstated cases; unlimited scope
Declarations that the appointments of the 1st, 3rd, 5th and 7th respondents are illegal, unconstitutional, null and void
Petitioners failed to adduce material evidence establishing the alleged constitutional violations
Judicial review orders of certiorari quashing the gazette notices and appointments
Violations not established on evidence
Orders of mandamus compelling fresh competitive, merit-based appointments
Petition dismissed
Order of prohibition against non-competitive, non-merit based appointments
Petition dismissed
Costs
The petition is dismissed with no orders on costs (each party to bear their own costs effect).
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.
In conclusion the petition is dismissed with no orders on costs.
board members of state corporations being public or state oficers, they are servants of the people and therefore employees drawing wages, salaries, allowances or other remuneration from the public funds
The Court finds that the petitioners had locus standi to file the petition in terms of Article 258 in this matter of public interest. The Court finds accordingly.
the petitioners have therefor not shown by evidence the circumstances of the impugned appointments to establish the violations of the Constitution as was alleged
the reliefs are worded as applying to future and unstated cases for which the declarations may not apply taking into account the relevant and applicable constitutional and statutory provisions on case by case basis
Issues in the judgment
#Gazette notice date for the 5th respondent's appointment appears as 20.12.2014, inconsistent with the other appointments of 20.12.2024
Further Affidavit date left blank in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikenyi B & 2 others v Mwaura & 9 others (Petition E001 of 2025) [2025] KEELRC 1321 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1321/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.