In a landmark judgment delivered on 3 July 2026, the Supreme Court upheld the jurisdiction of the High Court to hear a constitutional petition challenging the recruitment and appointment of Chief Executive Officers and Managing Directors of State corporations, including the appointment at Moi Teaching and Referral Hospital (MTRH). The petition had been filed by Nakuru-based surgeon Dr. Magare Gikenyi and other public interest litigants, who alleged constitutional violations in the recruitment process.
The Court rejected arguments that the dispute fell exclusively within the jurisdiction of the Employment and Labour Relations Court (ELRC). It held that while the ELRC has jurisdiction over pre-employment disputes, including challenges to recruitment, shortlisting, interview, and selection processes, the present petition was fundamentally a public interest constitutional challenge brought by citizens seeking to enforce constitutional values of equality, transparency, inclusivity, and good governance. The petitioners were not acting as applicants for the positions, prospective employees, or representatives of unsuccessful candidates, but as citizens invoking Articles 22 and 258 of the Constitution to challenge alleged constitutional violations.
The Supreme Court therefore affirmed that the High Court was properly seized of the matter under Article 165(3) of the Constitution. At the same time, the Court clarified that the ELRC’s jurisdiction is not limited to disputes arising from an existing employer-employee relationship and extends to constitutional challenges involving pre-employment recruitment processes. Consequently, the Court partially allowed both the appeals and cross-appeals, upheld the High Court’s jurisdiction in the specific case, and directed that Nakuru High Court Constitutional Petition No. E011 of 2024 be heard on a priority basis.
The decision provides important guidance on the jurisdictional boundaries between the High Court and the ELRC and reinforces the role of public interest litigation in ensuring accountability and constitutional compliance in appointments to public offices.
