Odongo v Clerk, Nakuru County Assembly & 5 others
The bottom line
#Supreme Court affirms: ELRC can't hear job disputes without an employer-employee relationship.
What this practically means
#The Supreme Court upheld that the Employment and Labour Relations Court (ELRC) only has power to handle disputes where there is an actual employer-employee relationship. In this case, a candidate for County Chief Officer tried to bring a case in ELRC, but the court rightly dismissed it because no employment relationship existed. The Court also refused to grant the candidate permission to appeal, finding the issues were already settled by earlier decisions. Each side must pay its own legal costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employment and Labour Relations Court (ELRC) lacks jurisdiction to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and whether such acts are of general public importance requiring further input by this Court.
- 2.Whether the list of disputes set out under section 12 of the Employment and Labour Relations Act No 20 of 2011 (ELRC Act) can be said to be limited and restrictive or whether the Act contemplates other employment questions not captured thereunder.
- 3.Whether in light of the provision of articles 23 and 258 of the Constitution of Kenya as well as rule 4 (2) as read together with rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules of Kenya the jurisdiction of the Employment and Labour Relations Court is only limited to parties before it.
- 4.Whether the learned judges erred in law and fact and fell into grave error in their application of sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under section 45 of the County Governments Act.
- 5.Whether it is a grave miscarriage of justice and violation of right to access to justice in public litigation to order the applicant to pay costs of the suit particularly where the suit has been shown to raise serious issues of law for determination.
Key legal issues
#Whether the intended appeal raises a matter of general public importance warranting certification under Article 163(4) of the Constitution.
The applicant failed to satisfy the threshold for certification as set out in Hermanus Phillipus Steyn v Giovanni Gneechi-Ruscone and Malcolm Bell v Daniel Toroitich Arap Moi. The issues raised were settled by existing precedents, and the applicant did not demonstrate any contradictory decisions or constitutional interpretation requiring the Supreme Court's intervention.
The Court of Appeal correctly found that the applicant had not set out why its decision on settled principles required consideration by the Supreme Court or how it impacts third parties or other cases. The applicant relied on High Court decisions that were subsequently superseded by Court of Appeal decisions in Attorney General & 2 others v Okiya Omtata Okoiti & 14 others and National Social Security Fund Board of Trustees v Kenya Tea Growers Association and 14 others, which determined the jurisdiction of the ELRC. The Supreme Court had also rendered decisions in Republic v Karisa Chengo & 2 others and Albert Chaurembo Mumba & 7 others demarcating the ELRC's jurisdiction. The applicant did not advance any cases distinguishable from these decisions.
Whether the Employment and Labour Relations Court has jurisdiction over disputes relating to recruitment, selection, nomination and appointment of employees where there is no employee-employer relationship.
The ELRC's jurisdiction is limited to disputes emanating from an employee-employer relationship and/or affecting its status. The Court of Appeal correctly interpreted section 12 of the ELRC Act in finding that there was no employee-employer relationship between the applicant and the 1st respondent, and therefore the ELRC lacked jurisdiction.
The Supreme Court in Republic v Karisa Chengo & 2 others determined that the ELRC and High Court are different and autonomous courts exercising different jurisdictions, with the ELRC's jurisdiction limited to matters provided for in the statute regulating it. In Albert Chaurembo Mumba & 7 others, the Court held that nowhere in the ELRC Act is there jurisdiction conferred on the ELRC to resolve issues outside the listed categories. The common theme is that a dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status. The Court of Appeal correctly applied this principle.
Whether the Court of Appeal erred in its application of sections 77, 85 and 87 of the County Governments Act regarding nomination of County Chief Officers.
The Court of Appeal gave a literal interpretation to these sections, and the applicant did not distinguish how the same is contradictory or has a significant bearing upon the public interest. The issue is also premised on factual dispositions, which cannot be a basis for granting certification.
The Supreme Court in Hermanus held that a determination of fact in contests between parties cannot be, in itself, a basis for granting certification for an appeal before the Supreme Court. The applicant's challenge to the Court of Appeal's interpretation of sections 77, 85 and 87 of the County Governments Act did not raise a point of law of general public importance but rather sought to re-litigate factual findings.
Whether the order for costs against the applicant in public interest litigation warrants certification as a matter of general public importance.
A mere apprehension of miscarriage of justice regarding costs is not a proper basis for granting certification. The issue of costs in public interest litigation is settled: the public interest must be obvious, and the 'costs follow the event' principle is not disbarred, each case being looked at in its peculiar circumstances.
The Supreme Court in Hermanus held that a mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification. In Okiya Omtatah Okoiti & 2 others v Attorney General, the Court settled that the public interest in any litigation must be obvious, and costs shall follow the event principle is not disbarred in such proceedings. The applicant did not demonstrate that the Court of Appeal's costs order was contrary to these settled principles.
Legal principles established
#- ELRC jurisdiction is limited to disputes that arise from an employer-employee relationship or affect its status.
- A mere fear of unfairness is not enough for the Supreme Court to grant permission to appeal.
- Public interest litigation does not automatically waive costs; each case is judged on its own facts.
- Factual disputes between parties cannot be a basis for Supreme Court appeal certification.
- The Supreme Court will not revisit settled legal principles on ELRC jurisdiction.
- Costs follow the event rule applies in public interest cases unless public interest is obvious.
Court orders
#- 1.The originating motion dated December 28, 2023 is hereby dismissed.
- 2.Each party shall bear its costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4) of the Constitution, section 15(b) of the Supreme Court Act, 2011 and rules 33(2) and (3) of the Supreme Court Rules, 2020
Relief refused
#Review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance
The applicant failed to demonstrate that the intended appeal raises a matter of general public importance as defined in Hermanus Phillipus Steyn v Giovanni Gneechi-Ruscone and Malcolm Bell v Daniel Toroitich Arap Moi.
Leave to appeal to the Supreme Court against the judgement of the Court of Appeal
The issues raised were settled by existing Supreme Court and Court of Appeal precedents, and the applicant did not demonstrate any contradictory decisions or constitutional interpretation requiring the Supreme Court's intervention.
Costs
Each party shall bear its costs of this application.
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 originating motion dated December 28, 2023 is hereby dismissed.
Each party shall bear its costs of this application.
The common theme in all the cases is that a dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status.
a mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification.
the public interest in any litigation in the matter must be obvious; and that costs shall follow the event principle is however not disbarred in such proceedings-each case being looked at in its peculiar circumstances.
The Court of Appeal in dismissing the application for certification found that the applicant had not set out why its decision on settled principles required consideration by the supreme Court and how it impacts third parties or other cases.
Key timeline
#Practical implications
#ELRC jurisdiction strictly limited
When advising clients on employment disputes, confirm an existing or former employer-employee relationship before filing in ELRC. Disputes about recruitment or appointment where no such relationship exists belong in the High Court or other appropriate forums. Citing settled Supreme Court precedents like Karisa Chengo and Chaurembo Mumba will help resist attempts to expand ELRC jurisdiction.
Know where to defend job cases
If you are a county government or employer facing a challenge to recruitment or appointment decisions before the appointment is made, you can argue the ELRC has no jurisdiction. Move to have the case transferred to the High Court. This ruling saves you time and costs by ensuring cases are heard in the correct court from the start.
Pick the right court from day one
If you are challenging a job recruitment or selection process but have never been employed by that organization, do not file in the Employment and Labour Relations Court (ELRC). Your case must go to the High Court. Filing in the wrong court wastes time and money, as the case will likely be dismissed. Check with a lawyer about which court handles your specific situation.
Frequently asked questions
#Can I sue in ELRC if I was only a job applicant in Kenya?+
No. The Supreme Court confirmed the ELRC only handles disputes where an employer-employee relationship exists or is affected. If you were just an applicant for a job like County Chief Officer and were not employed, your case belongs in the High Court, not the ELRC.
What does this ruling mean for county government recruitment disputes in Kenya?+
County governments and job candidates must file recruitment-related disputes in the High Court, not the Employment and Labour Relations Court (ELRC), unless an actual employment contract existed. This ruling clarifies jurisdiction and prevents cases from being dismissed for being filed in the wrong court.
Is it hard to get permission to appeal to the Supreme Court in Kenya?+
Yes. The Supreme Court will only grant permission (certification) if the case raises a matter of general public importance that needs its input. A simple fear of unfairness or factual disputes are not enough. You must show the issue is unsettled or affects many people beyond your case.
Do I have to pay costs if I sue in the public interest in Kenya?+
It depends. The Supreme Court said the 'costs follow the event' rule (loser pays) still applies in public interest cases, unless the public interest is very obvious. If you bring a public interest case and lose, you may still have to pay costs. Each case is judged individually.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others[2026] KESC 50 (KLR)3 Jul 2026distinguished
- Yoya v Kenyatta International Convention Center & 2 others; Mwaura (Interested Party) (Petition E060 of 2024) [2025] KEELRC 2561 (KLR)[2025] KEELRC 2561 (KLR)23 Sept 2025
- Yoya v Kenyatta International Convention Center & 2 others; Mwaura (Interested Party) (Petition E060 of 2024) [2025] KEELRC 2561 (KLR)[2025] KEELRC 2561 (KLR)23 Sept 2025
- Managing Director, Kenya Pipeline Limited & another v Public Procurement Administrative Review Board & 2 others (Civil Application Sup E018 of 2024) [2025] KECA 756 (KLR)[2025] KECA 756 (KLR)9 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Odongo v Clerk, Nakuru County Assembly & 5 others", Case Analysis (2024). Civil Application E053 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/29/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.