Martin & 3 others v Chairman, Kenya Sugar Board & 4 others

the Kenya Sugar Board; that the functionality of their oces in the absence of a fully constituted Board does not arise from an employer-employee relationship; and that the Petitioners lack the requisite locus standi to institute these proceedings under Section 12(2) of the Employment and Labour Relations Court Act. 2. The Preliminary Objection was canvassed by way of written submissions. 1st& 2ndRespondent’s Submissions 3. The 1st and 2nd Respondents submit the questions of locus standi and jurisdiction are foundational issues which must be determined before the Court embarks on the merits of the dispute. They rely on Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR) and contend that their objection satises the criteria of a preliminary objection as articulated in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd E.A [1969] 696, and Oraro v Mbaја [2005] KЕНС 3182 (KLR). 4. The 1st and 2nd Respondents submit that this court lacks jurisdiction because the substance of the Petition concerns the functionality of their oces in the absence of a fully constituted board, rather than an employment dispute. They rely on Article 162(2)(a) of the Constitution, and section 12(1) of the Employment and Labour Relations Court Act which limits the court’s jurisdiction to disputes relating to employment and labour relations. For the same argument, they also cite the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR), which underscored that even in a constitutional petition, the breach must be ancillary and incidental to the matters contemplated under section 12 of the Act. 5. They further submit that the 1st and 2nd Respondents as board directors are oce holders and not employees. In this regard reliance is placed on Rift Valley Water Services Board & 3 others v Asanyo & 2 others [2022] KECA 778 (KLR), in which the court held that in the absence of a contract of service in which a director is engaged as a fulltime employee, it cannot be presumed that the director is an employee of the company. Additional reliance is placed on Simiyu v Cabinet Secretary Ministry of Energy & another; Rural Electrication & Renewable Energy Corporation & another (Interested Parties) [2023] KEELRC 718 (KLR), in which the court held that a board a member is clearly not an employee but is an individual who sits to deliberate on matters of an organisation whenever called upon or when necessary. They assert that to the extent that the dispute concerns legality of actions taken in the governance of a statutory body rather than employment rights this court should down its tools. For this argument they cite Attorney General & 2 others v Okiya Omtata Okoiti & 14 others [2020] KECA 30 (KLR), where it was held: “ We have no doubt in our minds that the ELRC did not have any jurisdiction to entertain the three petitions that led to this appeal. A burning and well founded desire to remedy what are perceived to be violations of the Constitution does not justify seeking redress from a forum in which the Constitution has not vested the power to issue a remedy. It is a sad case of assuming that a wrong can be made right by another wrong. There is no delity to the Constitution in seeking to enforce the constitution through unconstitutional means." 6. The Respondents additionally submit that the Petition does not disclose any genuine constitutional question. They maintain that the issue of board quorum is one of statutory interpretation rather than constitutional adjudication. They rely on Musyoka v Clerk, Machakos County Assembly & 4 others; Sereka & 3 others (Interested Parties) [2024] KEHC 4647 (KLR) and Siaya County Public Service Board v County Assembly of Siaya & another [2020] KEHC 5868 (KLR). Invoking the doctrine of constitutional avoidance, they cite Anarita Karimi Njeru v Republic [1979] KLR https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2500/eng@2026-09-23 2

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and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), arguing that the Petitioners have merely cited constitutional provisions without demonstrating with precision how those provisions have been violated. They assert that issues surrounding the governance of the Kenya Sugar Board can be dealt with through the Sugar Act or through an ordinary suit, without recourse to the Constitution. Reliance is placed on Human Rights Commission v Insurance Regulatory Authority; Association of Kenya Insurers (Interested Party) [2024] KEHC 16211 (KLR), for the proposition that where an alternative mechanism for resolving a dispute exists, it ought to be pursued before invoking the Constitution. 7. With respect to the Petitioners locus standi to institute the suit, the 1st and 2nd Respondents submit that there is none. They maintain that the Petitioners are not employees of the Kenya Sugar Board thus are not among those permitted to lodge a claim under section 12(2) of the Employment and Labour Relations Act. Reference is made to Kenya Council of Employment and Migration Agencies & another v Samuel Mwongera & 2 others [2015] KEELRC 999 (KLR), where the Court emphasized that the jurisdiction of the Employment and Labour Relations Court over constitutional matters is conned to disputes falling within the scope of employment and labour relations. They maintain that the specialised jurisdiction of the ELRC cannot be invoked merely by relying on Articles 22 and 258 of the Constitution where the dispute does not fall within the Court’s statutory jurisdiction. They rely on Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others [2026] KESC 50 (KLR), where the Supreme Court held that disputes which do not arise between an employer and employee, but instead concern citizens and State organs in relation to alleged constitutional violations, fall within the jurisdiction of the High Court under Article 165(3)(b) and (d) of the Constitution. Consequently, the 1st and 2nd Respondents urge the Court to uphold the Preliminary Objection. Petitioners’ Submissions 8. The Petitioners, on the other hand, submit that this Court is a superior court of record with the status of the High Court under Article 162(2)(a) of the Constitution and, pursuant to Section 12 of the Employment and Labour Relations Court Act, has jurisdiction to determine disputes relating to employment and labour relations, including constitutional questions arising within that sphere. They submit that the legality of the appointment and exercise of authority by the 1st and 2nd Respondents, is inseparably connected with public employment and oce holding. Reliance is placed on Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR), where the Supreme Court armed that the Employment and Labour Relations Court may determine constitutional questions integral to disputes concerning employment and labour relations. The Petitioners submit that the manner in which the 1st and 2nd Respondent’s oces are being run and given that the Kenya Sugar Board performs both employer and regulatory functions, brings the dispute within the realm of labour relations. They further rely on United States International University (USIU) v Attorney General [2012] eKLR and David Ramogi & 4 others v Cabinet Secretary, Ministry of Energy & Petroleum & 7 others [2017] eKLR for the proposition that the jurisdiction of a court is determined by the substance of the dispute rather than its form. 9. The Petitioners further submit that the Respondents’ contention regarding the functionality of the oces in the absence of a fully constituted Board raises disputed questions of fact which cannot properly be determined through a Preliminary Objection. They rely on the principle in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 that a Preliminary Objection must raise a pure point of law, argued on the assumption that the facts pleaded by the other party are correct, and cannot be founded on facts requiring ascertainment. They maintain that the composition and functioning of the Board, in so far as they aect the validity of decisions concerning employment and labour relations, remain matters within the specialised jurisdiction of this Court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2500/eng@2026-09-23 3

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10. On locus standi, the Petitioners submit that section 12(2) of the Employment and Labour Relations Court Act does not impose a restrictive standing requirement and must be read together with Articles 22 and 258 of the Constitution. They contend that Articles 22(1) and 258(1) confer upon every person the right to institute proceedings alleging violation or threatened violation of the Bill of Rights or the Constitution, respectively, while Articles 22(2) and 258(2) expressly recognise proceedings instituted in the public interest. Reliance is placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Randu Nzai Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & another [2016] KECA 371 (KLR), for the proposition that the restrictive pre-2010 approach to standing no longer applies, and the only requirement is that a litigant demonstrates bona de and sucient interest in the subject matter. The Petitioners maintain that they are directly and adversely aected by the conduct complained of and have standing as persons acting in good faith to safeguard the constitutional and lawful exercise of authority by the 1st and 2nd Respondents. They contend that there is no allegation that they are busybodies or meddlesome interlopers and, consequently, the objection to their locus standi is without merit. 11. Finally, the Petitioners submit that the designation of the 1st and 2nd Respondents as directors does not oust the jurisdiction of this Court. They reiterate that the 1st and 2nd Respondents are sued as oce holders through whom the Kenya Sugar Board exercises functions touching on employment and labour relations and that their designation as directors therefore provides no basis for ousting the Court’s jurisdiction. They consequently urge the Court to dismiss the Preliminary Objection with costs and direct that the Petition proceed to hearing on its merits. Disposition 12. The preliminary objection raised is a mixed grill one. In certain respects, it calls for the Court to ascertain facts such as employment of the Petitioners and on the other asserts the dispute does not relate to employment. In the case before the Court, the Petitioners have asserted the illegality by breach of the Constitution in the positions held by employees of the Kenya Sugar Board. The Petitioners therefore have locus standi to litigate the issues before me. On the provenance of the preliminary objection, there was the case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (supra) which was called in aid. The objection raised does not meet the threshold of a preliminary objection as it requires the Court to establish facts. Where there has to a fact inquiry, a preliminary objection cannot be raised as these are only availed where the objection raised raises pure points of law. I decline to delve into any other aspects of the objection as those issues are for determination in the Petition proper. Preliminary objection dismissed with no order as to costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER 2026 NZIOKI WA MAKAU, MCIArb. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2500/eng@2026-09-23 4

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