Lel v Uasin Gishu County Public Service Board & another; Bulbul & 6 others (Interested Parties) (Miscellaneous Application E024 of 2025) [2025] KEELRC 3765 (KLR)

i). 3. Kshs. 55,000/= Prosecutorial Allowance. b). Kshs. 50,000/= Non-Practicing Allowance c). Kshs. 50,000/= Special Legal Allowance. d). Kshs. 12,000/= Responsibility Allowance. e). Kshs. 65,000/ = Entertainment Allowance. f). Kshs. 10,000/= Robe Allowance. For County Solicitor Boaz K BULBULJG S PF 20230347670 Kshs. 184,500/= per month arising from; a). Kshs. 55,000/= Prosecutorial Allowance. b). Kshs. 50,000/= Non-Practicing Allowance c), Kshs. 50,000/= Special Legal Allowance. d). Kshs. 12,000/= Responsibility Allowance. e). Kshs. 7,500/= Entertainment Allowance. f). Kshs. 10,000/= Robe Allowance. That the 1st and 2nd Respondents be and are hereby directed to pay the Principal Legal Counsel under Job Group Q allowances due as from 5/2/2014, the date of appointment: i). 5. a). That the 1st and 2nd Respondents be and are hereby directed to pay the County Solicitor Under Job Group S allowances due as from 14/8/2023, the date of appointment: i). 4. For County Attorney S.K LEL JG T" P/F 20XXXX500 Kshs. 242,000/= per month as from 1st January 2016 and until 31st July 2024 arising from; For Principal Legal Counsel Kenneth Mutai JG Q" P/F 201XXXX434 Kshs. 115,700/ = per month arising from; a). Kshs. 45,000/= Prosecutorial Allowance. b). Kshs. 30,000/= Non-Practicing Allowance c). Kshs. 30,000/= Special Legal Allowance. d). Kshs. 4,000/= Responsibility Allowance. e). Kshs. 1,700/= Entertainment Allowance. f). Kshs. 5,000/= Robe Allowance. That the 1st and 2nd Respondents be and are hereby directed to pay the Legal Counsels under Job Groups K, L,M,N allowances due as from their respective dates of appointment as follows: i). For Legal Counsel Loyce Kebenei JG L P/F" 20150092694 from 1/12/2015 her date of appointment, Kshs. 81,500/= per month arising from; a). Kshs. 30,000/= Prosecutorial Allowance. b). Kshs. 15,000/= Non-Practicing Allowance https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 2

page 2 of 12

ii) ii) c). Kshs. 30,000/= Special Legal Allowance. d). Kshs. 1,500/= Entertainment Allowance. e). Kshs. 5,000/= Robe Allowance. For Legal Counsel Bonface Cheruiyot JG L'" P/F20XXXX465 from 1/2/2021 his date of appointment, Kshs. 81,500/= per month arising from; a). Kshs. 30,000/= Prosecutorial Allowance. b). Kshs. 15,000/= Non-Practicing Allowance c). Kshs. 30,000/= Special Legal Allowance. d). Kshs. 1,500/= Entertainment Allowance. e). Kshs. 5,000/= Robe Allowance. For Legal Counsel Jerono Katwa JG L" P/F 202XXXX68 from 1/3/2021, Kshs. 81,500/= per month arising from; a). Kshs. 30,000/= Prosecutorial Allowance. b). Kshs. 15,000/= Non-Practicing Allowance c). Kshs. 30,000/= Special Legal Allowance. d). Kshs. 1,500/= Entertainment Allowance. e). Kshs. 5,000/= Robe Allowance. 6. That the allowances payable to the Applicant and pursuant to orders issued in paragraph 2 to 5 above do apply in respect to all advocates working under the employment of the 1st and 2nd respondents since the month of engagement of service by the respondents herein. 7. That costs of this application be in the cause. 2. The application is filed under sections 1(A), 1(B) 3(A) (sic) and 63(e) of the Civil Procedure Act and Order 8 Rule 3 and Order 51 Rule 1 of Civil Procedure Rules (2010) and all enabling provisions of the Law. 3. The application is anchored on the following grounds: a. That the intended beneficiaries herein are oficers hired in difierent cadres to ofier. legal services and serving in the Department of Ofice of the County Attorney. b. That more specifically, the applicant is the immediate former County Attorney and other intended beneficiaries are the County Solicitor and other 4 Legal Oficers of difierent Cadre. c. The applicant for himself and the legal team that served under him on their continuing service to the respondents aver that the Public Service Commission d. Human Resource Manual and Policy 2016, the public service circulars of 11.06.2010 and 09.10.2012 and other public service practice allowances applicable to legal professionals in public service and in the respondents establishments, apply to them. e. The applicant has on several occasions presented grievances to the respondents and despite promises to act, the respondents have failed to address the said grievances. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 3

page 3 of 12

f. l) That as shall be evidenced, the Salaries and Remuneration Commission has already rendered its opinion in several circulars which determine the allowances payable and by which the respondents ought to comply. g. That Courts of law have also rendered decisions which stand unchallenged relating to allowances payable to legal practitioners in public service. h. That most recently, the Employment & Labour Relations Court in Eldoret in ELRC Cause No. 35 of 2020 Sylvester Kipkemei Metto -vs- Uasin Gishu County Public Service Board & Others awarded the claimant therein who was a formerly-serving legal practitioner of the respondents Non- Practicing Allowances for the 5 years that he worked for the Government. i. That the 1st and 2nd respondents having failed to heed to the applicant’s requests ought to be directed to pay the Applicant allowances as tabulated in the prayer section. j. That apart from the monthly sums tabulated, the respondents be directed to pay the allowances payable to the applicant and the legal team serving under him since the month of engagement of service by the respondents herein. k. It is only fair and expedient that the application be allowed to enable the applicants enjoy their statutory and Constitutional rights. l. It is in the interest of justice and fairness that the orders sought are granted. m. No prejudice will be sufiered by anyone as the prayers sought are statute -based. 4. The application is further supported by the afidavit of Stephen K Lel, the Applicant herein, in which he reiterates the grounds on the face of the application. 5. The 1st and 2nd Respondents filed grounds of opposition to the application as follows: 6. a. That it is the exclusive mandate of the Salaries and Remuneration Commission established under Article 230 of the Constitution to set and regularly review the remuneration and benefits of all state oficers and to advise national and county governments on the remuneration and benefits of all other public oficers. b. That the Salaries and Remuneration Commission has advised all county governments, County secretaries and county public service boards on the remuneration and benefits for public oficers through circular no. SRC/TS/29 (81) dated 10th August 2023 which is now in force. c. That the Applicant never challenged nor sought a judicial review of the Salaries and Remuneration Commission circular. d. That the Applicant has wrongly enjoined the 1st and 2nd Respondents whose powers are limited to implementing the circular and all other Salaries and Remuneration Commission decisions. e. That this Honourable Court lacks jurisdiction to review the remuneration and benefits payable to public oficers as it is not a dispute envisaged under Section 12(1) of the Employment and Labour Relations Court Act. The 7th Interested Party filed a Notice of Preliminary Objection as follows: i. That the jurisdiction of this Honourable Court to hear and determine Miscellaneous Applications, under the Employment and Labour Relations Court (Procedure) Rules, 2024, is expressly limited to hearing applications for: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 4

page 4 of 12

a. adoption and enforcement of alternative dispute resolution agreements by the Court under Rule 69 (2): b. advocate and client bill of costs under Rule 70 (3): c. execution and warrants under Rule 73 (3): d. disagreement over collective agreement under Rule 78 (1); and e. reconstruction of files under Rule 82 (1). ii. That this Honourable Court’s jurisdiction to hear and determine the issues raised in the Notice of Motion Application dated 25th April, 2025 has not been properly invoked, as they fall outside the scope of the jurisdiction expressly conferred upon this Honourable Court under the Employment and Labour Relations Court (Procedure) Rules, 2024. iii. That the Notice of Motion Application dated 25th April, 2025 is, therefore, incompetent, misconceived, fatally defective and an abuse of the court process, and ought to be struck out with costs. 7. The court directed that the application and Preliminary Objection be disposed of together by way of written submission. 8. The Applicant filed separate submissions in respect of the application and preliminary objection. 9. On the application it is submitted that the applicant and the 1st to 5th Interested Parties who are advocates within the meaning of the Advocates Act were in private practice until they were absorbed into the public service by the Respondents. 10. That by circular dated 11th June, 2010 the Public Service Commission acknowledged that allowances payable to the legal and other professional cadres working in the public service had been delayed by the Commission for 5 years. The circular directed the enhancement of non-practicing allowance. 11. It is submitted that the 7th Interested Party in a circular dated 17th September, 2012 directed that the legal personnel in the State Law Ofice and Ofice of the Director of Public Prosecution be paid state counsel and prosecutorial allowances equivalent to the rates paid to Magistrate cadres in the Judicial Service Commission. 12. It is submitted that the 7th Interested Party subsequently issued a circular dated 9th May, 2022 enhancing non-practice allowance among other allowances. 13. The Applicant submits that by dint of the circulars referred to above, it is clear that the 7th Interested Party has pronounced itself on the allowances for Advocates in the Department of Justice, State law Ofice and Ofice of the Director of Public prosecutions. 14. The Applicant submits that in Sylvester Kipkemei Metto V Uasin Gishu Public Service Board And Others ELRC 35 of 2020 the Court observed that it would be discriminatory to deny the Claimant non-practicing allowance while other legal oficers performing similar functions were paid the same. 15. The Applicant submits that the Ofice of the County Attorney is a public ofice as defined in Article 260 of the Constitution. That the 7th Respondent is obligated under section 13(d) of the Salaries and Remuneration Act to ensure harmonization of salaries and remuneration in the public sector. That Article 232(1)(c) under values and principles of public ofice provides for responsive, prompt, efiective, impartial and equitable provision of services. The Applicant invites the court to conclude that that the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 5

page 5 of 12

7th Respondent has failed to harmonize the allowances and has therefore been unresponsive, sluggish, inefiective, partial and inequitable. 16. The Applicant further invites the court to find that the Applicant and the 1st to 5th Interested Parties have been discriminated contrary to Articles 27 and 41(2) of the Constitution. 17. The Applicant refers to the decisions in Hezekiah Oira t/a Oira Advocates V Kenya Broadcasting Corporation [2015] EKLR and Elrc Cause No. 547 of 2018 Erastus K. Gitonga And 4 Others V National Environmental Management Authority where the court held that the legal oficers working for the Respondents were entitled to non-practicing allowance. 18. The Applicant urged the court to find that he and the 1st to 5th Interested Parties are entitled to the prayers sought in the application. 19. On the Preliminary Objection the Applicant submits that the same was filed as an afterthought that came too late in the day. 20. The Applicant submits that the Employment and Labour Relations Court is competent to enforce the decisions of the Public Service Commission by virtue of Rule 73(3) of the Employment and Labour Relations Court (Procedure) Rules and section 89 of the Public Service Commission Act. 21. The Applicant further submits that courts are not to pay regard to procedural technicalities at the expense of substantive justice, citing Article 159 of the Constitution. Insisting that the application is properly before the court, the Applicant submits that want of form is not material. 22. The Respondents did not file any submissions in respect of the Application and Notice of Preliminary Objection. 23. The 7th Interested Party submits that this court has no jurisdiction to hear and determine the issues raised in the Notice of Motion application dated 25th April, 2025 as it is not anchored on any statement of claim, petition or other originating pleading capable of invoking this court’s jurisdiction. The 7th Interested Party cites and relies on the decisions in Owners of the Motor Vessel “lillian S” V Caltex Oil (Kenya) Ltd (1989) KLR 1 and the Supreme Court decision in Samual Macharia And Another V Kenya Commercial Bank and two Others Civil Application No. 2 of 2011. 24. It is submitted that the ELRC (Procedure) Rules, 2024 specifically provide an exhaustive framework on the instances in which a party may approach this Court through a Miscellaneous Application, the Permitted categories being strictly limited to: (i) Adoption/enforcement of ADR agreements (Rule 69(2) (ii) Advocate-client bills of costs (Rule 70(3); (iii) Execution and warrants (Rule 73(3); (iv) Disagreement on collective agreements (Rule 78(1) (v) Reconstruction of files (Rule 82(1)). 25. It is the submission of the 7th Interested Party that the Jurisdiction of this Court is expressly circumscribed and governed by its enabling statue and attendant procedural rules, namely the Employment and Labour Relations Court Act, 2011 (hereinafter “the ELRC Act”) and the Employment and Labour Relations Court (Procedure Rules, 2024 (hereinafter “the ELRC Rules”) 26. It is submitted that these categories exhaust the jurisdiction of tis Court in relation to standalone Miscellaneous Applications. They constitute both a substantive and procedural limitation upon the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 6

page 6 of 12

Court's jurisdiction. It is a cardinal principle of procedural law that where a specific procedure is statutorily prescribed for the invocation of a court's jurisdiction or for the grant of particular relief, such procedure must be scrupulously and strictly complied with. 27. That the doctrine of expressio unius est exclusio alterius is appropriate in the circumstances of this case. Where the ELRC Rules, 2024 have expressly enumerated the specific categories of miscellaneous applications that may be entertained by this Court, the necessary and inescapable implication is that all other forms of miscellaneous applications fall outside the Court's jurisdiction. The Applicant's attempt to circumvent this statutory limitation by styling their claim as a miscellaneous application represents a jurisdictional overreach that cannot be countenanced. 28. It is submitted that section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by rules. That rules 7 to 10 of the ELRC (Procedure) Rules, 2024 expressly, comprehensively, and exhaustively set out and prescribe the lawful, proper, and authorized mode of institution of original substantive suits, Rules unambiguously limit and restrict the permissible originating processes to three distinct categories, namely: Statements of Claim, Petitions and Judicial Review. 29. The 7th Interested Party submits that the subject matter of the Applicant's application, being a claim for payment of employment allowances, clearly mandates commencement by way of a Statement of Claim as prescribed by Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2024 (hereinafter "the ELRC Rules"). 30. That the Applicant's failure and/or omission to institute and prosecute the instant claim by way of a formal Statement of Claim or Petition, as expressly prescribed and mandated by Rules 7 and 10 of the ELRC (Procedure) Rules, 2024, is not a trivial or inconsequential procedural irregularity that may be characterized as a mere technical error or technicality. On the contrary, it constitutes a fundamental and fatal defect that goes to the very root of this Court's jurisdiction to entertain the application. The prescribed mode of initiation is jurisdictional in nature and cannot be circumvented or dispensed with. 31. It is submitted that the Court of Appeal, in Scope Telematics International Sales Limited v Stoic Company Limited & Another [2017] eKLR (Civil Appeal No. 285 of 2015) held that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or Statute, that procedure should be strictly followed. Further, that the manner of initiating a suit cannot be termed as a mere case of technicality: it is the basis of jurisdiction. 32. That in the same case the Court of Appeal further directly and comprehensively addressed the precise question of whether a party may invoke the provisions of Article 159(2)(d) of the Constitution to cure, waive, or override a procedural irregularity relating to the mode of instituting proceedings. The Court of Appeal, in categorical and unequivocal terms, held that: 33. (i) The prescribed manner and mode of initiating legal proceedings cannot properly be characterized or dismissed as a mere matter of technicality; rather, it constitutes the very foundation and basis upon which jurisdiction is invoked and established; and (ii) Judicial discretion, howsoever broadly construed, cannot lawfully be exercised to override, circumvent, or dispense with a mandatory statutory provision prescribing the procedure for the institution of proceedings. To hold otherwise would be to substitute judicial fiat for legislative command and would undermine the rule of law and the principle of legality. It is submitted, therefore, that to permit the Applicant would establish a dangerous precedent whereby litigants could bypass mandatory procedural requirements by creatively labeling their claims as miscellaneous applications. Such a practice would erode the integrity of the procedural framework https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 7

page 7 of 12

established by the ELRC Rules, 2024 and would open the fioodgates to forum shopping and abuse of court process. The Rules exist not merely as procedural guidelines but as jurisdictional gatekeepers that ensure matters are properly brought before the Court. Analysis and Determination 34. I have considered the pleadings and submissions on record. The first issue arising for determination therefrom is whether this court has jurisdiction to hear and determine the application filed by the applicant herein. 35. If the answer to this is in the positive, the second issue is whether the Applicant is entitled to the orders sought in his application. 36. On the first issue, a preliminary objection was defined in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors (1969) EA 696 thus: “ ...A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration..." 37. Sir Charles Newbold, P at Page 701 added: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...” 38. According to the Preliminary Objection of the 7th Interested Party, this court has no jurisdiction to hear or entertain the application filed herein on the basis that it has been brought contrary to the provisions of the rules of this court. 39. The issue of jurisdiction was substantially dealt with by the Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where it was stated as follows on the question of jurisdiction of a Court of law. “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 40. Based on the decision in Owners of the Motor Vessel “Lillian S”, I must deal with the issue of jurisdiction first. 41. In the notice of preliminary objection the 7th Interested Party avers that this court has no jurisdiction to hear the case because the application is not anchored upon a statement of claim, petition or originating pleading capable of invoking this courts jurisdiction. 42. In Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, the Supreme Court observed that: “… jurisdiction is a pure question of law…” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 8

page 8 of 12

43. Likewise, in Constitutional Application No. 2 of 2011, In the Matter of Interim Independent Electoral Commission (2011) eKLR the Apex Court observed: “ …. Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent.” 44. This Court is persuaded that the challenge on jurisdiction based on claimed incompetence of the application pursuant to the provisions of the Employment and Labour Relations Court (Procedure) Rules, 2024 is a pure question of law capable of disposing the suit at once. 45. “Suit” is defined in the Rules of this court as: “ suit” means a claim, petition, application for judicial review, appeal or any proceedings before the Court for determination”. 46. Rule 7 provides for institution of suits by way of statement of Claim. It provides: 7. (1) 47. A person who wishes to refer a dispute to the Court under any written law shall file a statement of claim setting out …. Rules 10 provides for institution of petitions and judicial review proceedings as follows: 10. (1) Any person who wishes to institute a petition shall do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules. (2) Any person who wishes to institute judicial review proceedings shall do so in accordance with sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. (3) Notwithstanding anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any constitutional provision in a statement of claim or other suit filed before the Court. 48. Other than appeals and interlocutory applications, the rules of this court do not provide for any other mode of institution of suits. 49. Originating summons are provided for in order 37 of the Civil Procedure Rules. As has been held by this court, where the Employment and Labour Relations Court (Procedure) Rules are silent on a procedural matter in employment suits, the court will apply the relevant provisions from the Civil Procedure Act and Civil Procedure Rules, supplemented by inherent powers under section 3A of the Civil Procedure Act. See Kau v Mota-Engil Engenharia E Construcao Africa; Matiru v Judicial Service Commission; Mkongo v Jitegemee Sacco Society Limited; to mention but a few. 50. In view of the fact that the rules of this court do not expressly provide for originating summons, guidance is taken from the decisions on the subject from cases arising under the Civil Procedure Act and Rules. 51. In the case of Geofirey Ndungu Theuri v Law Society of Kenya [1988] eKLR, the court held thus: “ … the order specifically refers to a suit which is defined under section 2 of the Civil Procedure Act in these terms; ‘suit’ means all civil proceedings commenced in any manner prescribed under the Civil Procedure Rules and an applicant is not entitled under Order 30 of the Civil https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 9

page 9 of 12

Procure Rules to seek or obtain an order for injunctive relief against another party without filing a suit. The grossly abused Section 3A of the Civil Procedure Act does not give the court the power to act without jurisdiction.” 52. In Maaga v Obure (Civil Appeal E055 of 2023) [2025] KEHC 3127 (KLR) (13 March 2025) (Judgment) Neutral citation: [2025] KEHC 3127 (KLR), the court observed: “ 16. My understanding of the above provisions and decision is that a suit can only be brought before the court through a Plaint, Originating Summons or a Petition. In the instant case, however, the Respondent initiated the case through a Notice of Motion seeking, inter alia, the return of his alleged title deed. I find that the manner in which the case was initiated does not meet the legal requirement for the institution of a suit. 17. My view is that miscellaneous civil applications are best suited for matters that are not contested or where the rights of the parties are not the subject of determination. Miscellaneous applications are made where the discretion of the court is sought or a procedural issue ought to be endorsed. The court is in such matters not being asked to determine any rights of the parties. I find guidance in the decision in Fidelity Bank Limited vs. John Joel Kanyali (2014) eKLR where Kasango J. referred to the decision in Board of Governors, Nairobi School vs. Jackson Ireri Geta (1999) KLR l and held thus: - “ It is clear from the above that a Civil action can only be commenced by filing a Petition, Summons and Plaint. This was made clear by the Court of Appeal in the case Board Of Governors, Nairobi School v Jackson Ireri Geta (1999) KLR. The Court stated in that case as follows:- “ “ 2. Pleading is defined in Section 2 of the Civil Procedure Act to include a petition or summons, and the statements in writing of the claim or demand of any plaintifi, and of the defence of any defendant thereto, and of the reply of the plaintifi to any defence or counterclaim of a defendant; this definition, is couched in such a way as to accord with Order IV rule 1 (now Order 3 Rule 1) which prescribes the manner of commencing suits, which rule provides that every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed. 3. The use of the term “summons” in the definition of the term “pleading” must be read to mean “originating summons” as that is a manner prescribed for instituting suits. 4. Chamber Summons is not a manner prescribed for instituting suits and cannot therefore be a pleading within the meaning of that term as used the Civil Procedure Act and Rules and made thereunder.” Similarly, as stated by the Court of Appeal, I say Notice of Motion is not a manner prescribed for instituting a suit. It cannot be a pleading as defined in Cap 21 and its Rules. Accordingly, there is no suit before Court which suit can sustain the Notice of Motion. I do therefore uphold the objection raised by the Respondent.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 10

page 10 of 12

53. I agree with the findings in above decisions. A notice of motion cannot be used to claim substantive rights. Such claims must be anchored on a substantive suit through a memorandum or statement of claim, petition, judicial review application or originating summons. 54. The Applicant submitted that courts are not to pay regard to procedural technicalities at the expense of substantive justice, citing Article 159 of the Constitution. He insists that the application is properly before the court and that want of form is not material. 55. While Article 159(2)(d) of the Constitution provides for the administration of justice without undue regard to technicalities, the failure to institute a suit in the proper manner goes to the root of the competence of the suit which the court cannot overlook. This was the position of the court in Scope Telmatics International Sales Limited vs. Stoic Company & Another [2017] eKLR, where it was held that: – “ Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure ….” 56. In Patricia Cherotich Sawe v Independent Electoral & Boundaries Commision(IEBC) & 4 others [2015] eKLR the Supreme court stated: (31) Although the appellant invokes the principle of the prevalence of substance over form, this Court did signal in Law Society of Kenya v. The Centre for Human Rights & Democracy & 12 Others, Petition No. 14 of 2013, that “Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls. Not all procedural deficiencies can be remedied by Article 159; and such is clearly the case, where the procedural step in question is a jurisdictional prerequisite.” 57. Jurisdiction is a matter of law and not procedure. Where proceedings are filed without jurisdiction, Article 159(2) will not come to the rescue of the party. 58. In the instant case, the Applicant approached the court seeking payment of allowances which according to the applicant, were his rightful employment benefits. The court would have to determine if it is true that the Applicant is entitled to the said benefits based on his terms of service. These are substantive issues that would call for evidence in a full hearing. They cannot be granted by an application that seeks to apply the decisions in other suits to the Applicant where the Applicant and the Respondents are not parties. 59. I must agree with the 7th Interested Party that the suit is incompetent for seeking substantive orders through an application that is not anchored on a suit. The Applicant must invoke the jurisdiction of the court properly for the court to assume that jurisdiction. In the instant case the court’s jurisdiction has not been properly invoked. The court has thus not been properly invited to assume jurisdiction. 60. For these reasons I find merit in the preliminary objection and uphold the same. The application herein is accordingly dismissed. There shall be no orders for costs. 61. For avoidance of doubt, the substantive prayers in the application have not been determined and the applicant is at liberty to invoke the jurisdiction of the court properly through a substantive suit. 62. Orders accordingly. DATED, DELIVERED VIRTUALLY AND SIGNED THIS 11TH DAY OF DECEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 11

page 11 of 12

M. ONYANGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11 12

page 12 of 12