REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
PETITION NO. E295 OF 2026
RAYMOND NJAGI KINYUA
(NATIONAL CHAIRMAN OF THE CECM CAUCUS) SUING ON HIS BEHALF AND ON BEHALF OF 470 COUNTY EXECUTIVE COMMITTEE MEMBERS (CECM) …………….PETITIONER
VERSUS
SALARIES AND REMUNERATION COMMISSION ……….. 1ST RESPONDENT
ATTORNEY GENERAL ……….. 2ND RESPONDENT
AND
COUNCIL OF GOVERNORS……….. 1ST INTERESTED PARTY
COMMISSION ON REVENUE ALLOCATION….. 2ND INTERESTED PARTY
NATIONAL TREASURY …… 3RD INTERESTED PARTY
Placed together with
PETITION NO. E284 OF 2026
THE COUNTY ATTORNEYS SERVING IN THE COUNTY GOVERNMENT OF MOMBASA, KWALE, KILIFI,
AND NAIROBI ………. 1ST PETITIONER
VERSUS
SALARIES AND REMUNERATION COMMISSION …….. 1ST RESPONDENT
COUNCIL OF GOVERNORS …….. 2ND RESPONDENT
THE HON. ATTORNEY GENERAL………. 3RD RESPONDENT
RULING
The petitions are placed together for ruling, as the objections addressed are similar, arise from the Hon. Attorney General, and are dated 21 October 2026. The lead file analysed is Petition E295 of 2026, and the findings apply to both files.
The ruling relates to the Notice of Preliminary Objections dated 21 October 2026, filed by the 2nd respondent, the Attorney General, and the 3rd interested party, the National Treasury.
The objections are that:
1. The court lacks the requisite jurisdiction under Article 162(2)(a) of the Constitution, read with section 12(1) of the Employment and Labour Relations Court Act, to hear and determine or grant the orders sought:
a. There is no employer-employee relationship or contract of service between the petitioner and the respondents.
b. The 1st respondent is an independent constitutional body under Article 230 and 249(2) (b), executing regulatory and public law mandates, not an employer.
c. The statutory and constitutional mandates executed by the 1st respondent constitute public administrative actions and policy advisories rather than contractually binding employment terms or industrial relations actions.
d. The 2nd respondent has no vicarious liability over these independent constitutional functions, rendering the 2nd respondent’s joinder a misjoinder.
e. The petitioner’s offices are governed by the County Government Act, making remuneration a matter of public law and constitutional interpretation rather than an ordinary labour dispute.
f. The petitioner lacks the locus standi to commence these proceedings.
The 2nd respondent and 3rd interested party seek dismissal of the petition with costs.
The 2nd respondent and 3rd interested party submitted that the court lacks the requisite jurisdiction to hear the petition or grant the orders sought. The subject matter addressed by the petitioners is outside the court's jurisdiction because there is no employment relationship between the parties, as held in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR). Although the court has jurisdiction over pre-employment disputes, the High Court retains exclusive jurisdiction under Article 163(3) where the core grievance turns on an evaluation of public law administrative mandate and constitutional values rather than an operational employment contract breach. The dispute herein relates to the application of Article 47 of the Constitution, where the petitioners challenge the mandate of the 1st respondent and nothing relating to the employment relationship.
The office of the County Attorney is statutorily created under the Office of the County Attorney Act. Remuneration and terms of service attached to such an office are questions of public law and constitutional interpretation. This challenges the constitutional validity of public law or the exercise of policy mandates by constitutional commissions; hence, it belongs to the High Court, not this court.
In the absence of an employer-employee relationship or a contract of service as defined under section 12(1) of the ELRC Act, this Court lacks jurisdiction. In Nick Githinji Ndichu v the Clerk, Kiambu County Assembly & another [2014] eKLR, the court held that a party asserting an employer-employee relationship, or lack thereof, must establish the existence or non-existence of an oral or written contract of service. The petitioners have not provided evidence of an employment contract or an employer-employee relationship with the SRC or any of the respondents.
The 2nd respondent is thus misjoined in these proceedings. Under Article 249(2) of the Constitution, the 2nd respondent has no vicarious liability for the independent commissions such as the SRC to be a party to these proceedings.
The petitioners have no standing before the Court, and the matter should have been filed before the High Court.
The petitioners submitted that under Article 162(2) (a), the Court has the jurisdiction to hear and determine all matters of employment and labour relations. The dispute before the Court relates to the petitioners' remuneration following the 1st respondent's circular and decision communicated through a letter dated 11 September 2026. As part of its mandate under Article 230 of the Constitution, the 1st respondent’s decision has affected the terms and conditions of service for the petitioners, and such a decision can only be addressed by the Court and not the High Court.
The court has the requisite jurisdiction to interpret constitutional rights and freedoms as a superior court. In United States University (USIU) v Attorney General [2012] eKLR, the Court held that it has the mandate to address constitutional questions regarding employment and labour relations, not the High Court. This position is affirmed in Kenya Tea Growers Association & 2 Others versus The National Social Security Fund Board of Trustees & 13 Others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR).
Although there is no direct employment relationship between the petitioners and the 1st respondent, the legality of its decision that affects the terms and conditions of service for the petitioners is an employment issue, and only the court can address it under Article 162(2)(a) of the Constitution. The 2nd respondent's presence is necessary because the petition raises questions of constitutional and legal interpretation.
Articles 22 and 258 of the Constitution permit proceedings to be brought by persons acting on their behalf and on behalf of others in the interest of a group or class or in the public interest. The subject matter herein relates to employment, and the petitioners are acting on their own behalf and on behalf of others similarly situated. The petitioners have standing, and the Court should hear the petition on the merits.
Determination
Since June 2026 and the judgment in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR), the court has witnessed a flurry of Notices of Preliminary Objections on the court's jurisdiction, some taking away gains that the court sought to secure since the Constitution, 2010. The objections by the 2nd respondent and 3rd interested party are one such scenario.
This is important because the 2nd respondent is the Hon. Attorney General. The office is established under Article 156 of the Constitution as the Government's principal legal adviser and fundamentally acts as the promoter, protector, and upholder of the rule of law and defender of the public interest.
Indeed, this court is established under Article 162(2) (a) of the Constitution with the mandate to hear all disputes relating to employment and labour relations and for connected purposes. Article 162(3) of the Constitution also directs Parliament to enact legislation to determine the Court's jurisdiction and functions.
In this regard, the ELRC Act sets out the Court's jurisdiction under section 12. The relationships outlined therein include an overriding provision, including the listed relationships, and a connected purpose. Reading these provisions exclusively and devoid of the connected purpose would diminish the constitutional principles and values outlined under Article 162(2) (a) and (3) of the Constitution. It would lead to an absurd appreciation of the intention and purpose of the Constitution, 2010 and how the people of Kenya envisaged the Employment and Labour Relations Court (ELRC) to serve them in addressing matters that are exclusively reserved for a specialised court and not any other superior court as dictated under Article 165(5) (b) of the Constitution.
Employment and labour relations are not just the contract of employment, as submitted by the 2nd respondent and the 3rd interested party. Labour relations are not limited to the presence of a collective agreement; they extend to the entire shop floor where terms and conditions of employment and labour relations are negotiated.
In Kenya Tea Growers Association & 2 Others v National Social Security Fund Board of Trustees & 13 Others [2024] KESC 3 (KLR), the Court emphasised the constitutional imperative that the ELRC has the jurisdiction to determine constitutional questions where they arise within its employment and labour relations jurisdiction. A narrow interpretation of Article 162(2) (a) of the Constitution, without looking at Article 165(5) (b) that comes in later, would leave big gaps in any such interpretation.
The petitioner defines himself as the chairperson of the CECM, and the petition is on his behalf and on behalf of others similarly situated. They are state officers within the county executives.
The 1st respondent is the independent commission established under Article 230 of the Constitution, with functions that include reviewing the remuneration and benefits of state officers and advising the national and county governments on the remuneration and benefits of public officers. The 2nd respondent is the principal legal advisor to the national government and acts in the public interest.
The 1st respondent has everything to do with employment terms and conditions, including those of the petitioner and similarly situated officers. The question of remuneration and benefits goes to employment and labour relations and connected matters.
The petitioner has the requisite standing before the Court under Article 22 and 258 as of right and as a representative of similarly situated persons. He is not engaged in an academic exercise. The facts in the petition relate to his remuneration, benefits and terms of engagement, including those of other persons and officers similarly situated. See Muutu & 3 others (Suing as the Legal Administrators of the Estate of Simeon Muutu Mutisya) v Amboga & 2 others [2026] KEELC 1034 (KLR)
The petitioner has the locus standi.
Equally, the 2nd respondent, as the advisor to the national government, has the mandate to act in the public interest. The petitioner(s) serve in the entirety of the 47 counties. The matters addressed in the petition, including the interpretation of Article 47 of the Constitution in view of the decisions taken by the 1st respondent, relate directly to the public interest. To take a different view that the 2nd respondent or the 3rd interested party only acts for the national government would be to abdicate the duty to act in the public interest.
Inherently, a misjoinder or non-joinder of a party is not fatal. A suit cannot be defeated or thrown out merely because of the misjoinder or non-joinder of parties. See Makini Housing Co-operative Society Limited & 2 others v Mwangi & 4 others [2025] KEELC 701 (KLR) and Blue Valley Enterprises Limited v National Government Constituencies Development Fund (Civil Suit E013 of 2024) [2025] KEHC 4254 (KLR.
The provisions of Article 159(2)(d) of the Constitution aptly apply in this regard. Justice should be done without undue regard to procedural technicalities.
The court finds no misjoinder of the parties.
The assertions by the 2nd respondent and the 3rd interested party that the petition relates to public law and constitutional interpretations and that these are issues in the preserve of the High Court and that the court's jurisdiction is reserved for contractual relationships under section 12(1) of the ELRC Act is a serious misinterpretation of article 162(2) (a) and 165(5) (b) of the Constitution. Such interpretations should not be allowed to take root, particularly given the 2nd respondent's objections as Attorney General.
Accordingly, the objections dated 21 October 2026 are without merit and are hereby dismissed. Costs to the petitioners.
Objections dismissed apply to Petition E284 of 2026. The objections dated 21 October 2026 therefrom are dismissed with costs.
Delivered in open court this 2nd day of November 2026
M. MBARŨ
JUDGE