Exclusive, Except When It Isn’t: The Kenyan Supreme Court’s Unspoken Capacity Test For ELRC Jurisdiction, And The Judicial Review Tension It Generates In MTRH v Magare Gikenyi
Issue 008 — A Critique
On 3rd July 2026, a 5-Judge bench of the Kenyan Supreme Court [“the Court”] delivered the judgement in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR), purporting to resolve, “with finality” in the spirit of Kenya Tea Growers Association v NSSF Board of Trustees [2024] KESC 3 (KLR), the jurisdictional boundary between the High Court and the ELRC over pre-employment recruitment disputes. I want to put to one side the correctness of the outcome and interrogate the reasoning, because on close reading it does three things a bench of this seniority ought not to do without saying so: it announces a subject-matter rule and then decides the case on an unstated capacity exception to it; it treats what may well be obiter guidance as if it carried the same operative force as ratio, entrenching it directly into the formal orders; and it leaves entirely unexamined a collision with the Fair Administrative Action Act that directly emanates from its own reasoning.
I start with the central holding. At paragraph 70, the Court states, without qualification, 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.” That is a subject-matter statement: it is about what kind of dispute this is, not about who is bringing it. The Court gets there by a genuinely useful piece of statutory synthesis: it reads the word “including” in Section 12(1) as illustrative rather than exhaustive [58], and then, applying the in pari materia canon endorsed by the South African Constitutional Court in The Independent Institute of Education v KwaZulu-Natal Law Society and adopted locally in Njuguna v Republic [2025] KECA 850 (KLR) [56], imports “prospective employee” and “person seeking employment” into ELRC’s jurisdiction via Section 5 of the Labour Relations Act and Sections 5, 9(9) of the Employment Act [61–69]. This is a sound and persuasive analysis. But the Court never asks the question that ejusdem generis would demand of it: does the genus of persons expressly listed in Section 12(2), including employees, employers, trade unions, the Registrar of Trade Unions, the Cabinet Secretary, share a common character that should determine how far “any other written law” can stretch, or is the phrase an open door? The Court squarely asserts extension without testing restriction, which matters because the same interpretive lens, run the other way, is exactly what the High Court and Court of Appeal used to reach the opposite conclusion on the same words.
Here is where the reasoning wobbles. Two paragraphs after declaring exclusive ELRC domain over pre-employment disputes, the Court upholds the High Court’s jurisdiction over such a dispute involving the challenge to the CEO and MD appointments at four parastatals, which the Court itself delineates as concerning “the manner in which the advertisement of the vacancy is done, the manner in which the shortlisting of the applicants... is done, the interview process and the selection of the successful candidates” [47]. Final order (iii) upholds the Court of Appeal “to the extent that it found that the High Court, on the facts before it, had jurisdiction over the dispute” [82(iii)], in the same breath as order (i) sets aside the Court of Appeal’s finding “that the jurisdiction of the ELRC does not extend to pre-employment disputes” [82(i)(a)]. I surmise that both cannot be true of the same recruitment file unless something other than subject matter is guiding the Court’s reasoning. That something is capacity, and it is embedded deep in paragraphs 72 to 75: the 1st to 7th respondents pleaded themselves not as rejected applicants or prospective employees under Section 12 or its related statutes, but as “human rights activist, patriotic citizens of Kenya, law-abiding citizens, public-spirited individuals, and human rights defenders” invoking Article 22(2)(c) public interest standing [73–74]. That is the ratio. The Court never states it as a rule; it states the opposite rule at paragraph 70, in absolute terms, and then reaches its result through an unarticulated exception. A rule announced as subject-matter jurisdiction, applied through the capacity of the litigant, is not a rule any competent advocate can safely rely on when advising a client on where to file, because the Court has given the bar no test applicable when a pleading crosses from “aggrieved applicant” into “public-spirited citizen”. Crucially, this is an increasingly important question given that Kenyan courts have historically been wary of public interest litigation being used to bypass proper party requirements where identifiable victims exist and could sue in their own right (the concern evident in the Kenya Tea Growers Association v NSSF Board of Trustees litigation). On the strength of this judgment, any advocate wishing to escape ELRC’s newly created “exclusive domain” over recruitment disputes needs only to draft the petition from the constitutional citizenship angle rather than personal grievance. The Court has, in substance, handed practitioners a forum-selection clause clothed as a jurisdictional holding.
The second difficulty is more substantive still, and goes to what actually binds. If the case turns, as I have argued, on capacity rather than subject-matter, then paragraphs 55 to 71, which are the entire reasoning establishing ELRC’s “exclusive domain” over pre-employment disputes generally, were not necessary to dispose of the appeal before the Court. The appeal could have been resolved in a single paragraph: since the 1st to 7th respondents sued as public interest litigants under Article 22(2)(c), not in any capacity contemplated by Section 12 of the ELRC Act or its related statutes, the High Court properly retained jurisdiction, without more. Everything else is guidance on a question the facts did not require the Court to answer to dispose of this appeal; classically obiter, however well reasoned. Yet the Court incorporates that guidance directly into the formal orders, expressly setting aside a limb of the Court of Appeal’s judgment on the strength of it [82(i)(a)–(b), 82(ii)(a)]. This is not a lazy distinction. Whether paragraphs 55 to 71 bind lower courts under Article 163(7) as ratio, or merely persuade as considered dicta, will determine how much weight an ELRC judge or High Court judge is entitled to give it the next time a rejected tenderer or unsuccessful candidate brings a petition ambiguously worded between personal grievance and public interest, and the Court has given the profession no signal that it turned its mind to the distinction at all. Advocates should also note that this same bench declined, at paragraph 78, to exercise Article 163(4)(a) jurisdiction over the territorial jurisdiction and conservatory-order questions raised in the very same consolidated appeal, holding those questions did not “constitute a matter relating to the interpretation or application of the Constitution.” That is a defensible position taken alone, but read against paragraphs 38 to 45, where the Court struggled to establish its own jurisdiction over the appeal at all, given that the appellants invoked both limbs of Article 163(4) and the cross-appellants cited no limb whatsoever, rescued only by an oral clarification from the bar [38, 45], it confirms that this Court now perceives Article 163(4)(a) jurisdiction as something to be assessed issue-by-issue within a single appeal, rather than appeal-wide once jurisdiction is established on one ground. That fragmentation is itself worth noting to any advocate drafting grounds of appeal: a single notice of appeal may clear the constitutional threshold on one ground and be summarily locked out on another, entirely within the same file.
Finally, and to my mind most consequentially for practice, the judgment fails to engage the Fair Administrative Action Act 2015, as it should have. The recruitment and appointment of a state corporation’s CEO is a law 101 “administrative action” within the meaning of Section 2 of that Act, ordinarily the subject of a review in the High Court under Order 53 of the Civil Procedure Rules read with Section 8 of the FAAA, giving effect to Article 47. If ELRC’s jurisdiction over pre-employment procedural disputes, including advertisement, shortlisting, interview, selection [79], is now “exclusive” whenever the complainant is an applicant or prospective employee rather than a public-interest citizen, does that oust the established judicial review avenue under the FAAA for that same category of litigant challenging the same category of decision? The judgment is silent, and the silence is not trivial: it yields uncertainty for every rejected candidate in a state recruitment process, uncertain whether their remedy lies in an FAAA judicial review at the High Court or a constitutional petition at the ELRC. This is implicitly the “muddle” that the Court itself laments at paragraph 46 that litigants had to endure historically. Here’s the bottomline: An apex court setting the record straight on the jurisdictional boundaries between courts of the same status has a duty to reconcile that restatement with the statute Parliament passed specifically to govern administrative decision-making of this kind. This judgment, similar to the decision of the Court analysed in this author’s thesis in MLR Issue 001 embedded below, does not attempt it.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.