Midalimu & 2 others v Musiega & 4 others
The bottom line
#Kenya's Employment Court struck out a challenge to a Vihiga County appointment, ruling public-interest constitutional claims belong in the High Court, not the ELRC.
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 the subject matter in view of the Supreme Court decision in Moi Teaching and Referral Hospital v Dr. Gikenyi & 74 Others
- 2.Whether the petition and application are fatally defective for non-compliance with Rule 10(2) of the Mutunga Rules
- 3.Whether the petition violates separation of powers by seeking to interfere with County Assembly approval proceedings
- 4.Whether the petition raises constitutional issues meeting the Anarita Karimi Njeru threshold
- 5.Whether the Petitioners failed to exhaust alternative remedies
- 6.Whether the Petitioners have locus standi
Key legal issues
#Jurisdiction of the ELRC over public-interest challenges to pre-employment public appointment processes
The ELRC lacks jurisdiction where the petitioners have no direct employment interest; such public-law claims lie in the High Court.
Applying the Supreme Court's decision in Moi Teaching and Referral Hospital v Gikenyi, the court distinguished between claimants with a direct interest (applicants, interviewees, employees) who may sue in the ELRC, and public-interest litigants whose constitutional claims belong to the High Court. The Petitioners were county employees but neither applied for nor sought the county attorney position, placing them in the High Court category.
Effect of absence of employer-employee relationship on ELRC jurisdiction
No employer-employee relationship having been created, the challenged recruitment process cannot be litigated in the ELRC.
Both sides acknowledged no employment relationship yet existed. The Petitioners were challenging a recruitment process likely to create one. Combined with their lack of direct interest in the position, this meant the subject matter fell outside the ELRC's jurisdiction, requiring the petition and application to be struck out.
Stare decisis and conflicting first-instance directions on jurisdiction
Although the judge agreed with Nyakundi J's direction that the matter belonged to the ELRC, both courts are bound by the Supreme Court's contrary holding.
The Petitioners first filed in the High Court at Vihiga, where Nyakundi J directed he lacked jurisdiction and referred them to the ELRC. The court expressed agreement with that view personally but held itself bound by the Supreme Court's decision in Moi Teaching and Referral Hospital, which it found 'surprising and confusing' but binding under stare decisis.
Legal principles established
#- Where a petition is filed by persons with no direct interest in the employment dispute (not applicants, interviewees or employees), public-law constitutional claims belong to the High Court under Article 165(3)(b) and (d), not the ELRC.
- A court without jurisdiction should take no further step.
Court orders
#- 1.The application by the Petitioners dated 3rd September 2026 and the petition are hereby struck out for this Court's lack of jurisdiction over the subject matter.
- 2.No order on costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Vihiga
- Petition No. E009 of 2026
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; jurisdiction contested in view of the Supreme Court decision in Moi Teaching and Referral Hospital v Dr. Gikenyi
Relief refused
#All conservatory orders/injunctions restraining the vetting, approval or reappointment of the 1st Interested Party as County Attorney
The entire petition and application were struck out for lack of jurisdiction; the court made no determination on the merits.
Declarations that the notification of 21st August 2026 was inadequate, null and void, and that the Governor contravened the Public Appointments Act
Not determined; the court held it would be academic to venture into the other issues after finding no jurisdiction.
Costs
No order on 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.
The application by the Petitioners dated 3rd September 2026 and the petition are hereby struck out for this Court's lack of jurisdiction over the subject matter.
Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of the Constitution.
This fact places the Petitioners in the category of the persons that the Supreme Court decided should file their petition in the High Court.
if the Court finds that it has no jurisdiction it should make no more one step
However, the Court hereby appeals to the Respondents and the Interested Parties to ensure that the process is anchored and executed in accordance with the law to avoid further unnecessary litigation over the issue.
Issues in the judgment
#Coram initials 'DN NDERITU' conflict with signature 'DAVID NDERITU'; role labels in the cause title are inconsistent (Governor listed as Respondent, Clerk and Speaker as 1st and 2nd Respondents, while relief refers to 1st, 2nd and 3rd Respondents).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Midalimu & 2 others v Musiega & 4 others", Case Analysis (2026). Petition E016 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2566/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.