The Supreme Court has cleared the way for the hearing of a case challenging the appointment of chief executives at four state corporations over alleged ethnic marginalisation and discrimination.
At the same time, the court issued a landmark ruling that broadens the Employment and Labour Relations Court’s jurisdiction over recruitment disputes.
In a judgment delivered on Friday, the court directed that the petition challenging the State appointments be fixed for hearing on priority after more than two years of litigation over which court should handle the dispute.
The judges upheld the Court of Appeal’s finding that the High Court was properly seized of the specific petition filed by Magare Gikenyi and six other public-interest litigants.
The dispute stems from the 2024 government’s recruitment of chief executives and managing directors for Moi Teaching and Referral Hospital (MTRH), Athi Water Works Development Agency, Kenya Broadcasting Corporation (KBC) and Kenya National Shipping Line.
After applications were invited, Government Spokesperson Isaac Mwaura announced the appointments. Philip Kiptanui Kirwa was named MTRH chief executive, Joseph Mungai Kamau was appointed to Athi Water Works Development Agency, Agnes Kalekye Nguna was named KBC managing director, and Abdalla Mohamed Hatimy was appointed managing director of Kenya National Shipping Line.
Dr Gikenyi and six other petitioners moved to the High Court in Nakuru in May 2024 seeking to nullify the appointments. They alleged the recruitment process violated constitutional requirements, including merit, equality and inclusivity.
The petitioners also alleged ethnic marginalisation and argued that statutory instruments establishing the four state corporations had expired, rendering the recruitment process unlawful.
The High Court certified the matter as urgent and issued conservatory orders suspending implementation of the appointments.
It also rejected the Attorney-General’s preliminary objections that challenged its jurisdiction and that sought to have the petition struck out.
The Attorney-General, appearing for some of the respondents, together with other parties, argued that the dispute concerned recruitment into employment positions and therefore fell exclusively within the Labour Court’s jurisdiction, not the High Court.
They also challenged the High Court’s territorial jurisdiction, alleging forum shopping and procedural irregularities.
The petitioners maintained that they were not litigating as employees or job applicants but as citizens seeking to enforce the Constitution and challenge alleged violations of public governance, constitutional values and inclusivity.
The High Court dismissed the objections, and the Court of Appeal later upheld that decision in a ruling dated May 23, 2025, finding that the petition had been filed by citizens acting in the public interest rather than within an employer-employee relationship.
The dispute then reached the Supreme Court, where the appellants argued that recruitment and appointment disputes fall squarely within the Labour Court’s mandate because they arise from employment processes.
They also contended that the High Court in Nakuru lacked geographical territorial jurisdiction since the recruitments were undertaken elsewhere.
The Supreme Court agreed that the Labour Court’s mandate extends beyond existing employment relationships and includes constitutional challenges arising from recruitment, advertising of vacancies, shortlisting, interviews and selection processes.
“The jurisdiction of the Labour Court is not limited to employer-employee relationships only and does extend to pre-employment disputes,” the court ruled.