Francis Awino v June Teclar Chepkemei & Kenya Tourism Board (Interested Party)

(i) A declaration that the recruitment, appointment and continued employment of the Respondent as Chief Executive Officer of the Kenya Tourism Board violated Articles 10, 41, 73, 75 and 232 of the Constitution of Kenya. (ii) A declaration unconstitutional that the unlawful, Respondent’s null and appointment void for want is of compliance with mandatory constitutional and statutory requirements governing public employment. (iii) An order of certiorari quashing the decision appointing the Respondent as Chief Executive Officer of the Kenya Tourism Board, including the relevant Gazette Notice and any resultant employment contract. (iv) An order of prohibition restraining continuing the Respondent from to act, serve or hold herself out as the Chief Executive Officer of the Kenya Tourism Board. (v) An order of mandamus compelling the Kenya Tourism Board, its Board of Directors and the responsible appointing authority to commence and conclude a fresh, transparent, competitive and merit based recruitment process in strict compliance with the constitution, the Tourism Act and applicable labour laws. (vi) A declaration that the Petitioner as a public interest litigant acted lawfully and in good faith to protect constitutional governance, public employment, integrity and fair labour practices. (vii) An order directing that any remuneration benefits or public resources expended ELRC NAIROBI – PET E022 OF 2026 pursuant to the unconstitutional 2

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appointment be subjected to audit and dealt with in accordance with the law. (viii) Costs of the petition. (ix) Any other or further orders that this honourable Court may deem just, fit and expedient in the interest of justice, constitutionalism and public accountability. Respondent’s case By a Replying Affidavit sworn on 26th June 2026 in opposition to the petition, the Respondent deponed that she was appointed vide Gazette Notice No. 3226 Vol CXXVI dated 19th March, 2024 and assumed office on 1st April, 2024 and the instant petition was filed many months later and she was competitively recruited in an open, fair and non-discriminatory manner and was serving under a three (3) year contract. The affiant deponed that the advertisement required a Master’s degree in Business or Marketing or related field at least 12 years working experience with at least 10 years in senior management level in the tourism hospitality or related sector. That she held a Bachelors of Science in Mass Communication and Public relations, Master of Philosophy in Communication Studies, post graduate Diploma in Professional Marking, Diploma in Strategic Marketing, Diploma in Corporate Digital Communication and Certificates in completion in GIC Innovation Execution Program Senior Management Course and Strategic Leadership Development and a PhD student at Kisii University. ELRC NAIROBI – PET E022 OF 2026 3

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In addition, the affiant deponed that she was a member of the Chartered Institute of Marketing (CIM- UK) and the Public Relations Society of Kenya. That the Masters of Philosophy in Communication Studies was an advanced degree. The Affiant further deponed that she had experience in Senior Management from as far back as 2012 and the advertisement required at least 10 years and her experience as Managing Director of Ken Invest was relevant to the position and had been honoured severally and since appointment the Interested party had received several awards. Finally, the affiant deponed that she had satisfied the requirements of Chapter Six of the Constitution of Kenya and invited the Court to find and hold that her appointment to the position was competitive, transparent and lawful and the Petitioner acted in bad faith and had unclean hands. Whereas the Respondent filed submissions on 16 th July 2026, the Petitioner filed on 2nd August 2020 after the judgment date had been fixed and thus late. The court disregarded the submissions. As to whether the Respondent was qualified for the position of Chief Executive Officer of the Interested Party, Counsel submitted the burden of proof lay on the Petitioner to prove that the Respondent was not qualified as by law required but failed to do so. Reliance was placed on the Public Service (Values and Principles) Act on the criteria of employment of public officers, namely merit, ELRC NAIROBI – PET E022 OF 2026 4

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equity, aptitude suitability, qualifications required, knowledge and experience, efficiency, integrity and constitutional values. Reliance was further placed on the provisions of Section 36(2) of the Public Service Commission Act. Counsel highlighted the process the Respondent went through for the appointment to be actualized on 24th March 2024 citing Section 37(2) of the Tourism Act which required the CEO of the Interested Party to hold an advanced degree in marketing business administration or related discipline and the Respondent was thus qualified to hold the position as the legislature had used conjunctive and disjunctive phrases in its wisdom. Reliance was also placed on the sentiments of the Court in Environment Public Health Association of Kenya (EPHAK) v Public Service Commission & 2 others (2024) KEELRC 593 (KLR) on the essence of phrases such as “or any other relevant qualification” and the Respondent had demonstrated her qualifications and milestones and thus met the requirements for the position as prescribed by the Tourism Act. As to whether the petition is merited counsel submitted that it lacked merit since the Respondent was indeed qualified for the position she held and the Petitioner failed to demonstrate the unconstitutionality of the Respondent’s appointment and approached the court with unclean hands. Also cited were the decisions in Peter Odongo Obura V Secretary County Government of Migori (2018) KEELRC 147 (KLR) and Bett V Governor Bomet County & 2 others SRC (Interested party) (2021) KEELRC 2432 (KLR) on the threshold of a ELRC NAIROBI – PET E022 OF 2026 5

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constitutional petition to urge that the Petitioner’s case had not met the threshold for the award of the orders of certiorari, mandamus and prohibition. Reliance was further placed on the decision in Shipwondo v Deputy County Commissioner & 3 others (2026) KEELRC 1296 (KLR) for the requirements for certiorari to issue. Finally, Counsel contended that although the Court had determined the issue of jurisdiction, the decision in Moi teaching and Referral Hospital & 3 others V Gikenui & 74 others (2026) 50 (KLR) the Supreme Court addressed the issue and held that the Court had no jurisdiction in such matters and the right forum was the High Court and the petition was for dismissal. The Petitioner is challenging the appointment of the Respondent as the Chief Executive Officer of the Kenya Tourism Board a state corporation, almost two (2) years after the appointment took place. According to the Petitioner, juxtaposing the Petitioner’s qualifications, experience and skills against the advertisement by the Interested Party revealed that the Respondent was not qualified for the position. He is questioning the wisdom of the Interested Party’s Board of Directors which recruited the Respondent. The issues for determination are; (i) Whether the Court has jurisdiction to hear and determine the instant petition. Depending on the answer to (i) above; ELRC NAIROBI – PET E022 OF 2026 6

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(ii) Whether the Respondent met the requirements for the office of Chief Executive Officer of the Interested Party. Concerning jurisdiction, and as correctly submitted by the Respondent’s Counsel, the Court had already pronounced itself on the issue vide its ruling delivered on 16 th June 2026 pursuant to a Notice of Preliminary Objection by the Respondent’s Counsel dated 13th April 2026. However, it is trite law that “Jurisdiction everything and without it, a court has no power to make one more step” and ought to down its tools as exquisitely captured by Nyarangi JA in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR) See also in this regard Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (2012) eKLR on the sources of a Courts. Needless to emphasize a court must have jurisdiction to hear and determine the matter before it from the beginning to the end In Lemito Ole Lemein V Attorney General (2020) eKLR Karanja JA stated: “In my view jurisdiction is primordial and must exist right from filing of a case to determination. The issue of jurisdiction need to be raised by the parties to a suit for the Court to address its mind to it. It is incumbent upon every judicial or quasi judicial tribunal or Court to satisfy itself that it has jurisdiction to entertain a matter before setting down to hear it. In essence ELRC NAIROBI – PET E022 OF 2026 7

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therefore a Court or tribunal should not wait for a party to move it on the issue of jurisdiction for it to determine the issue. The Court can suo motu determine the issue even without being prompted by a party. Just as you cannot confer jurisdiction by ignoring the issue or side stepping it. It is omnipresent and cannot be wished away. Moreover, it being a point of law, the issue of jurisdiction can also be raised at any stage; in the trial Court, first appeal or even on second or third appeal” [emphasis included] The Supreme Court fortified the foregoing sentiments in Modern Holdings (EA) Ltd V Kenya Ports Authority (2020) eKLR as follows: “In concluding on this issue, it is trite that the question of jurisdiction can be raised at any stage of the proceedings”. See also Dina Management Ltd V County Government of Mombasa (2023) KESC 30 (KLR) and Ngao V Kitheka (2025) KESCI (KLR) Needless to emphasize, the issue of jurisdiction of the Employment and Labour Relations Court has been considered in innumerable cases such as Hassan Magiya Kiage v Attorney General & another (2017) KECA 203 (KLR), Stanley Mungai Muchai V National Oil Corporation (2012) eKLR Attorney General & 2 others V Okoiti & 14 others (2020) KECA 30(KLR), Karisa V Chengo & another (2017) eKLR, United States International University (USIU) V Attorney General & others (2012) eKLR Daniel N. Mugendi V Kenyatta University & 3 others (2013) ELRC NAIROBI – PET E022 OF 2026 8

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eKLR and Kenya Tea Growers Association & 2 others V National Social Security Fund Board of Trustees & 13 others (2024) KESC 3 (KLR) The latest decision on the issue is, however, the decision in Moi Teaching and Referral Hospital & 3 others V Gikenyi & 74 others (supra), which is relevant to the instant petition. By its judgment delivered on 3rd July 2026, the Supreme Court expressed itself as follows: “Based on our own interpretation and application of Articles 162(2) (a) and 165(3) (b) of the Constitution, read together with the provisions of the relevant statutes, dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC. The jurisdiction of the ELRC therefore goes beyond resolving employer employee disputes. The list in Section 12 of ELRC Act is not exhaustive. Apart from listing persons entities and offices that by definition do not qualify as an employees or employer, the Act in explicit terms, extends the jurisdiction of the ELRC as maybe conferred by any other law in respect of employment and labour relations. The three written laws, the Employment Act, the Labour Relations Act and the Labour Institutions Act create additional categories of persons and offices who have access to the Court but who are neither employees nor employers. They provide in plain language that this category of persons and offices can sue or ELRC NAIROBI – PET E022 OF 2026 9

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be sued before the ELRC. The statutes further provide that preemployment grievances involving those categories are justifiable in the ELRC. Any dispute beyond those explicitly stated class must be instituted in the High Court.” Juxtaposing the foregoing sentiments of the Supreme Court against the facts of the instant petition, it is discernible that this Court has no jurisdiction to hear and determine the instant petition. This is because the Petitioner styled himself as a public interest litigant and a human rights defender and instituted the petition in the public interest and thus outside the category of persons who are identified by the Employment Act, Labour Relations Act and the Labour Institutions Act. The upshot of the foregoing is that the Court with jurisdiction to her and determine the instant petition is the High Court and this Court must down its tools. Consequently, the petition dated 22nd January 2026 is struck out with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER ELRC NAIROBI – PET E022 OF 2026 10

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In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI – PET E022 OF 2026 11

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