https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1369

Aga Khan Education Services Kenya v Njenga (Appeal E107 of 2024) [2026] KEELRC 1369 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1369 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E107 of 2024 JW Keli, J May 15, 2026 Between Aga Khan Education Services Kenya Appellant and Catherine Waithira Njenga Respondent (Being an Appeal from the Ruling and Orders of the Hon. C.K. Cheptoo (PM) delivered on 5th March, 2024 in Nairobi CMELRC E1085 of 2023) Judgment 1.The Appellant herein, being dissatisfied with the Ruling and Orders of the Hon. C.K. Cheptoo (PM) delivered on 5th March, 2024 in Nairobi CMELRC E1085 of 2023 between the parties filed a memorandum of appeal dated the 3rd of April 2024 seeking the following orders:-a.The Appeal be allowed with costs to the Appellant both in this Honourable Court and the Lower Court.b.The Ruling and Orders issued in Nairobi CMELR Cause No. E1085 of 2023, be set aside and the suit against the Appellant be dismissed with costs. Grounds Of The Appeal 2.The Honourable Trial Magistrate erred in law and in fact, in failing to find and hold that only the Employment and Labour Relations Court has original jurisdiction to interpret the Constitution and determine matters relating to the breach of Constitutional rights and freedoms. 3.The Honourable Trial Magistrate erred in law and in fact, in finding that she has jurisdiction to hear and determine the claim filed herein despite it raising employment-related Constitutional violations. 4.The Honourable Trial Magistrate erred in law and in fact, in failing to recognize that she was exercising a limited jurisdiction pursuant to Gazette Notice No. 6024 of 2018, which does not include jurisdiction over Constitutional violations. 5.The Honourable Trial Magistrate erred in law and in fact, in ignoring the provisions of Section 8 of the Magistrates Court Act, which sets the jurisdictional limits for magistrate's courts with regard to alleged Constitutional violations. 6.The Honourable Trial Magistrate erred in law and in fact, in making contradictory findings on the question of jurisdiction by finding, in the first instance, that she did not have jurisdiction to determine prayers iv) and v) of the Statement of Claim and, in the second instance, finding that she has insufficient information to address the issue of jurisdiction and would determine the same at full hearing. 7.The Honourable Trial Magistrate erred in law and in fact, in failing to consider the issues raised in the Appellant's Preliminary Objection dated 4th August 2023 and the Submissions in support thereof. 8.The Honourable Trial Magistrate erred in law and in fact, in dismissing the Appellant's Preliminary Objection dated 4th August 2023 with costs. Background To The Appeal 9.The Respondent filed suit vide a statement of claim dated 20th June 2023 seeking the following reliefs against the Appellant:i.A declaration that the Respondent's action in dismissing the Claimant from employment was unlawful and unfair.ii.A liquidated sum of Kshs. 10, 152,300.00 particularized in paragraph 19 above.iii.Total settlement of all outstanding statutory dues and remittances.iv.General damages for constitutional violations, oppressive treatment. psychological anguish and extensive reputational injury.v.General damages for discrimination in respect of termination of employment contrary to section 5(3)(b) of the Employment Act.vi.Delivery of Certificate of service under section 53(3) of the Employment Act.vii.Costs of this suit.viii.Interests on the amount awarded at court rates.ix.Any other further and better relief the Honourable Court may deem just and fit to grant.(statement of claim and accompanying documents on pages 24-56 of ROA dated 19th February 2025). 10.Alongside her statement of claim, the Respondent also filed a notice of motion application bearing the same date as the statement of claim, seeking the following orders:i.Spent.ii.That pending the hearing and determination of the Claim herein, this Honourable Court do and hereby order the Respondent to furnish the Claimant with the following documents;a.Certified Copy of the AKESK HR Policyb.Certified Copy of the Minutes of the disciplinary hearingc.Certified Copy of all written evidences and reports the basis of disciplinary proceedings against the Claimant.iii.That pending the hearing and determination of the Claim herein, an Order be and is hereby issued by this Honourable Court directing the Respondent to immediately release the Claimant/Applicant's Certificate of Service.iv.That pending the hearing and determination of the Claim herein, an Order be and is hereby issued by this Honourable Court directing the Respondent to immediately release all outstanding salaries and SACCO contributions.v.That pending the hearing and determination of this application and claim, this Honourable Court do and hereby order the Respondent to release to the Claimant Three (3) Months' Salary In lieu of Notice being Kshs 154,800.00.vi.That pending the hearing and determination of this application and claim, this Honourable Court do and hereby order the Respondent to release to the Claimant the sum of Kshs 90,300.00 being unpaid leave days.vii.That the costs and incidentals be provided for.viii.That this Honourable Court be at liberty to grant any further orders and/or relief that may be just and expedient. 11.In support of the notice of motion application, the Respondent filed a supporting affidavit sworn on 20th June 2023 (pages 7-23 of ROA). 12.The Appellant entered appearance on 29th June 2023, and responded to the claim and application by filing a preliminary objection dated 4th August 2023 (pages 59-60 of ROA). They later filed grounds of opposition dated 10th June 2024 to the application; a memorandum of response dated 25th June 2024; a list and bundle of documents dated 1st August 2024; and the witness statement of TERESIA KARANJA dated 4th July 2024 (pages 61-107 of ROA). 13.Through the said preliminary objection dated 4th August 2023, the Appellant challenged the jurisdiction of the court to hear and determine the claim and application pursuant to Section 8 of the Magistrates Court Act No 26 of 2015, on the premise that the Respondent’s claim complained of violations of Constitutional provisions and sought compensation for such violations. 14.The court issued directions that the preliminary objection be disposed of by way of written submissions (pages 2-4 of Supplementary ROA dated 25th November 2025). The parties complied (pages 108-152 and 156-230 of ROA dated 19th February 2025). 15.The Trial Magistrate Court delivered its ruling on the 5th of March 2024, dismissing the Appellant’s preliminary objection for the reason that it brought forth both factual and legal inquiries which could only be determined during the full hearing of this case. However, it acknowledged that pursuant to Section 8 of the Magistrates Court Act, it lacked jurisdiction to entertain prayers iv) and v) of the statement of claim (ruling at pages 231-239 of ROA). Determination 16.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 17.In their submissions dated 12th March 2025, the Appellant identified the following two issues for determination:-i.Whether the trial court has jurisdiction to entertain the claim; andii.Whether the appeal is merited. 18.On her part, the Respondent identified the following single issue for determination in her submissions dated 22nd January 2025:i.Whether the trial court had jurisdiction to hear and determine the Application and Claim both dated 20th June 2023. 19.The court on perusal of the grounds of appeal and the impugned ruling was of the considered opinion that the issue for determination is- whether the trial court erred in law in its ruling dated 5th March 2024 on its jurisdiction. 20.The impugned ruling was on the appellant’s preliminary objection dated 4th August 2023 which raised the following 2 grounds as follows-a.This Court lacks jurisdiction to hear and determine the application and the claim in view of the provisions of Section 8 of the Magistrates Court Act No. 26 of 2015 Laws of Kenya.b.The entire suit is an abuse of the process of this Court and the same ought to be struck out with costs to the Respondent. 21.The suit before the trial court sought for the following reliefs-i.A declaration that the Respondent's action in dismissing the Claimant from employment was unlawful and unfair.ii.A liquidated sum of Kshs. 10, 152,300.00 particularized in paragraph 19 above.iii.Total settlement of all outstanding statutory dues and remittances.iv.General damages for constitutional violations, oppressive treatment. psychological anguish and extensive reputational injury.v.General damages for discrimination in respect of termination of employment contrary to section 5(3)(b) of the Employment Act.vi.Delivery of Certificate of service under section 53(3) of the Employment Act.vii.Costs of this suit.viii.Interests on the amount awarded at court rates.ix.Any other further and better relief the Honourable Court may deem just and fit to grant.(statement of claim and accompanying documents on pages 24-56 of ROA dated 19th February 2025). 22.The trial court applied the provisions of section 8 of the Magistrates Act and held it lacked jurisdiction to determine prayers IV and V in the suit, but had jurisdiction over other prayers. The trial court stated as follows: ‘From the above provisions, it is clear that section 8 grants jurisdiction to magistrate courts only regarding alleged violations of article 25 (a) and (b) of the Constitution, which concern freedom from torture and cruel, inhuman or degrading treatment or punishment and freedom from slavery or servitude. From the reading of Section 8 of the Magistrates Court Act I find that this court lacks jurisdiction to determine prayers iv) and v) of the claimant's statement of claim. The court however has jurisdiction to determine the other issues on the termination of the claimant. This court acknowledges the preliminary objection raised on August 4, 2023, which brings forth both legal and factual inquiries. The court recognizes its duty to scrutinize these matters before rendering a ruling. Importantly, the court notes that the information currently before it is insufficient to address the issue of jurisdiction. Consequently, the court rejects the request to dismiss the suit as requested. The matter of jurisdiction will be deliberated upon during the full hearing of this case. In conclusion, the court finds no merit in the preliminary objection. The same is dismissed with costs’. 23.The appellant relied on the decision of the court in Nathaniel Lusijji Shibira v H.E Wlbur Ottichilo and 2 others (2021)e KLR which cited Supreme Court decision in Hussein Khalid &16th Others v Attorney General &2 others to effect that the Magistrate court had no jurisdiction over allegations of violation of employment related constitutional rights pursuant to section 8 of the Magistrates Act. The Supreme Court in Khalid & 16 others v Attorney General & 2 others (Petition 21 of 2017) [2019] KESC 93 (KLR) (18 October 2019) (Judgment) held as follows as regards the jurisdiction of magistrate court over allegations of constitutional violations- ‘118…..the Magistrates Court Act No.26 of 2015 has since been enacted to give effect to articles 23(2) and 169(1)(a) & (2) of the Constitution ; to confer jurisdiction, functions and powers on the magistrates' courts; to provide for the procedure of the magistrates' courts, and for connected purposes. Section 8 of the said Act vests jurisdiction in the magistrate court to hear and determine applications for enforcement of constitutional rights, but limited only to claims on freedom from torture and cruel, inhuman or degrading treatment or punishment, and freedom from slavery or servitude as guaranteed in article 25(a) and (b) of the Constitution. The jurisdiction of the Magistrates’ court does not also extend to determination of claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights. The section 8 provides: “Claims relating to violation of human rights 8(1) (2) (3) Subject to article 165(3)(b) of the Constitution and pecuniary limitations set out in section 7(1), a magistrate’s court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The applications contemplated in subsection (1) shall only relate to the rights guaranteed in article 25(a) and (b) of the Constitution. Nothing in this Act may be construed as conferring jurisdiction on a magistrate’s Court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights. The Chief Justice shall make rules for the better exercise of jurisdiction of the magistrate’s courts under this section.” It consequently follows that the position in which the appellants sought to clarify regarding the jurisdiction of the Magistrate’s Courts in dealing with the enforcement of the Bill of Rights has since been addressed by section 8 of the Magistrates’ Court Act. However, that legislation was not in force when the Appellants were first before the Magistrate’s Court, and the Magistrate’s Court at that time rightly applied the applicable law. Parliament has granted to the Magistrates Courts power to consider applications on alleged violations of the Bill of Rights but has limited that power to only two rights under article 25(a) and (b): freedom from torture and cruel, inhuman or degrading treatment or punishment; and freedom from slavery or servitude . This limitation is constitutional as Parliament does not bar a person from bringing a case alleging violation of his right but only limits the forum where that cause can be done.’’ The Court finds that the trial court correctly held it lacked jurisdiction to determine prayers iv and v of the suit to wit- ‘i.General damages for constitutional violations, oppressive treatment. psychological anguish and extensive reputational injury.ii.General damages for discrimination in respect of termination of employment contrary to section 5(3)(b) of the Employment Act.’ 24.The court finds the trial court’s further statement to qualify its decision amounted to approbating and reprobating where it stated-‘The court, however, has jurisdiction to determine the other issues on the termination of the claimant. This court acknowledges the preliminary objection raised on August 4, 2023, which brings forth both legal and factual inquiries. The court recognises its duty to scrutinise these matters before rendering a ruling. Importantly, the court notes that the information currently before it is insufficient to address the jurisdictional issue. Consequently, the court rejects the request to dismiss the suit as requested. The matter of jurisdiction will be deliberated upon during the full hearing of this case. In conclusion, the court finds no merit in the preliminary objection. The same is dismissed with costs’’. 25.The trial court, having found it had no jurisdiction on prayers iv and v in the application, ought to have allowed the preliminary objection on the 2 prayers only and proceeded to determine the rest of the prayers it had jurisdiction on. The appeal is allowed for the foregoing reason. 26.The ruling of the trial court is set aside and replaced as follows: the notice of preliminary objection dated 4th August 2023 is allowed as follows: The lower court lacks jurisdiction to determine prayers (iv) General damages for constitutional violations, oppressive treatment, psychological anguish, and extensive reputational injury, and (v) General damages for discrimination in respect to termination of employment, contrary to section 5(3)(b) of the Employment Act, which are struck off the suit. The suit shall proceed on its merits regarding other issues. Costs to follow the outcome. 27.The court held that the appeal succeeded only in striking out the two prayers related to constitutional issues. The Court orders each party to bear its own costs in the appeal. The suit is remitted to the trial court for hearing and determination of the outstanding reliefs before any magistrate with jurisdiction other than Hon. C.K Cheptoo. 28.It is so Ordered. DATED, SIGNED, AND, DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant:- Ms AchiengRespondent:-Ms Gathira h/b Kamotho