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ELRCOtherJudicial Review Application (transferred from Nairobi High Court JR E093 of 2025)

Republic v Cabinet Secretary, Ministry of Education & 2 others; Amukhono (Ex parte Applicant); Toroitich & 3 others (Interested Parties) (Judicial Review E023 of 2025) [2025] KEELRC 2020 (KLR)

Employment and Labour Relations Court
30 June 2025
3,992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a case filed in the wrong court is dead on arrival and cannot be fixed by transferring it.

What this practically means

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Executive summary

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The Respondents/Applicants (including the Cabinet Secretary for Education) moved the court by Notice of Motion dated 24th April 2025 seeking to discharge, set aside or vary ex-parte orders issued on 23rd April 2025 and interim injunctions restraining the four Interested Parties from sitting on the University of Nairobi Council. They argued that the judicial review application had been filed in the High Court (JR E093 of 2025), which on 15th April 2025 declined jurisdiction and transferred it to the ELRC; relying on Equity Bank v Mutie they contended that a court without jurisdiction cannot transfer a suit, that the transfer was a nullity, and that the subsequent ex-parte orders were void ab initio, obtained without disclosure and in breach of natural justice. The Ex-parte Applicant countered that the transfer was an administrative act facilitating access to the correct forum, relying on Ali Jarso Wako, and defended the revocation dispute on substantive grounds under the University of Nairobi Charter and the Universities Regulations 2023. The court agreed with the applicants, holding that a suit filed in a court without jurisdiction is a nullity and cannot be transferred; the application was 'dead on arrival' and the orders of 23rd April 2025 could not stand. It set aside, reviewed and discharged those orders, struck out the entire judicial review application, and made no order of costs. The substantive dispute over the revocation of the council members' appointments was left undecided, with liberty implied to file afresh in the proper forum.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a court lacking jurisdiction can transfer an application to a court with jurisdiction, or whether such a transfer is a nullity
  2. 2.Whether the ex-parte orders issued on 23rd April 2025 should be discharged, set aside or varied
  3. 3.Whether the orders were obtained through material non-disclosure and in violation of natural justice

Key legal issues

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01

Whether a court without jurisdiction may transfer a suit to a court with jurisdiction

Holding

No. Such a transfer is a nullity; the receiving court cannot entertain the application and should not have issued orders on it.

Reasoning

Relying on Equity Bank Ltd v Bruce Mutie Mutuku, the court held that a suit filed in a court lacking jurisdiction is incompetent and cannot be sanctified by transfer. Once jurisdiction is found lacking, the court should down its tools and strike out or dismiss the claim rather than transfer it. The transferred application was 'dead on arrival', so the orders issued by the ELRC on 23rd April 2025 could not stand.

p. 8
02

Validity of the ex-parte orders issued on 23rd April 2025

Holding

They were set aside, reviewed and discharged as they issued on an application that was a nullity and were ex-parte.

Reasoning

The court agreed with the applicants that, having received a transferred application that lacked a lawful foundation, it could not issue orders as it did on 23rd April 2025. The orders were granted ex-parte without the respondents being heard, offending natural justice, and flowed from proceedings transferred without jurisdiction.

p. 8

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to another court; the proper course is to strike out or dismiss the claim.

Court orders

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  1. 1.Set aside/reviewed and discharged the orders issued on 23rd April 2025
  2. 2.Struck out the entire Judicial Review application
  3. 3.No order of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi (Constitutional and Human Rights Division)
Judicial Review E093 of 2025
Jurisdiction invoked
Article 162(2) of the Constitution (specialised ELRC jurisdiction), following transfer by the High Court

Relief refused

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Interim injunction restraining the 1st–4th Interested Parties from participating in Council activities

The application was a nullity having been transferred without jurisdiction; entire JR application struck out

p. 8

Setting aside orders dated 23rd April 2025 pending the petition (i.e., continuation of the JR petition)

The entire Judicial Review application was struck out

p. 8

Costs

There will be no order of costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is indeed true that a suit filed in a court without jurisdiction is a nullity and cannot be transferred to another court.
p. 8jurisdiction and transfer of suits
I do agree with the applicants therefore, and proceed to set aside/review and discharge orders of 23rd April 2025.
p. 8setting aside ex-parte orders
By virtue of the orders/ reasons which are given in this ruling, I proceed to strike out the entire Judicial Review application. There will be no order of costs.
p. 8final orders

Issues in the judgment

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minor

Judgment refers to the applicants/respondents inconsistently, describing the moving parties (the Cabinet Secretary side) as 'Respondents/Applicants'

minor

Court cites Section 51(1) as if within the Universities Act when it belongs to the Interpretations and General Provisions Act

minor

Gazette Notices cited variously as 4656–4659 and 4656–4660

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Cabinet Secretary, Ministry of Education & 2 others; Amukhono (Ex parte Applicant); Toroitich & 3 others (Interested Parties) (Judicial Review E023 of 2025) [2025] KEELRC 2020 (KLR)", Case Analysis (2025). Judicial Review Application (transferred from Nairobi High Court JR E093 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2020/eng@2025-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.