https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12236

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **MISCELLANEOUS CIVIL APPLICATION NO. E081 OF 2026** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY FELISTER NJERI WAWERU BY WAY OF MANDAMUS AGAINST THE PRINCIPAL/SECRETARY KAIRI SECONDARY SCHOOL AND CHAIRPERSON BOM KAIRI SECONDARY SCHOOL PURSUANT TO SECTION 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA** **AND** **IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015** **AND** **IN THE MATTER OF ORDER 53(1) OF THE CIVIL PROCEDURE RULES, 2010** **AND** **IN THE MATTER OF ARTICLES 22, 23, 47, 48, 50, 129 & 159 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF EXECUTION OF A TAXED CERTIFICATE OF COSTS AGAINST THE GOVERNMENT OF KSHS. 631,169.86/-** **BETWEEN** **FELISTER NJERI WAWERU…………...……………….…APPLICANT** **VERSUS** **PRINCIPAL KAIRI SECONDARY SCHOOL…...…1ST RESPONDENT** **CHAIRPERSON BOM** **KAIRI SECONDARY SCHOOL……………………..2ND RESPONDENT** **RULING** **Introduction** 1. By Chamber Summons dated 21st April 2026, the Applicant seeks the following orders:- 2. That the Applicant be granted leave to file an application seeking an order of mandamus by way of judicial review directed at and compelling the Principal/Secretary Kairi Secondary School and Chairperson BOM Kairi Secondary School herein to satisfy the judgment, decree, certificate of costs and order against the government all in total principal sum of Kshs. 631,169.86/- together with interest thereon at 14% per annum from the date of judgment of this court was entered in default of which execution to issue against the respondents plus further costs of this judicial review proceedings until payment in full. 1. The application is unopposed. **The Applicant’s Case** 1. The applicant states that she is the decree holder in Employment and Labour Relations Court Nairobi Case No. 1764 of 2016 whereby she obtained judgment on 24th October 2024. She further avers that a certificate of taxation was issued on 19th November 2025 by the Deputy Registrar of the Employment and Labour Relations Court at Nairobi where it was ordered that the respondents were to pay her Kshs. 10,951/- for pay in lieu of notice; Kshs. 350,000/- as damages; costs and interest of the award at court rates from the date of judgment and Kshs. 204,595/- for certificate of taxation. The applicant states that he is aggrieved by the respondents’ inaction in paying the taxed costs to date. Further, despite requesting and seeking compliance from the respondents calling for the issuance of cheques to settle the taxed costs, the respondents have failed to settle the same. 1. The applicant avers that execution against a public school ought to follow the Government Proceedings Act and several courts have directed that the only remedy available to a person who has a decree against the government would be to institute judicial review proceedings and seek leave for an order of mandamus to compel the government to settle the decree in question. 2. The Applicant avers that she served the Respondents with a Certificate of Order against the Government on 18th March 2026. 3. The Applicant states that the Respondents have failed, ignored, refused and/or neglected to perform their statutory and public duty by failing to comply with the certificate order and the said sum continues to accrue interest. **Analysis and Determination** 1. The Applicant wants this this Court to grant leave to file an application of judicial review to enforce the judgment of the **Employment and Labour Relations at Nairobi Number 1764 of 2016- Feliste Njeri Waweru vs The Chairman Board of Governors Kairi Secondary School**. 1. This Application thus raises the fundamental question of jurisdiction in the light of Article 165 (5) of the Constitution which provides: (5) The High Court **shall not have jurisdiction** in respect of matters- 1. falling within the jurisdiction of the courts contemplated in Article 162 (2). 2. The Courts contemplated under Article 162 (2) are the specialised Courts with the status of the High Court established under an Act of Parliament to hear and determine disputes relating to employment and labour relations and, the environment and use and occupation of, and title to land. This Article of the Constitution should be read together with Article 162 (3) of the Constitution which empowers Parliament to prescribe the jurisdiction of specialised courts and Section 12 of the Employment and Labour Relations Act which expressly defines the jurisdiction of the Employment and Labour Relations Court. 3. The central question thus becomes, whether this Court is the proper forum for the Application before it, hence must inquire and ascertain its competence to deal with the matter, hence the issue: **Whether this Court has jurisdiction to entertain the application dated 21st April 2026** 1. The locus classicus case on jurisdiction is the **Owners of the Motor Vessel “Lilian S” vs Caltex Kenya Limited [1989] KLR 1** where the court held as follows: **Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.** 1. Jurisdiction is conferred either by the Constitution or statute and must be ascertained before the Court before the Court takes up the matter for a decision made without jurisdiction is a nullity in law. The Supreme Court made this clear in **Samuel Kamau Macharia & Another vs KCB & 2 Others [2012] eKLR** thus:- **“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of the mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011. Where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law…** 1. The Employment and Labour Relations Court at Nairobi rendered its judgement in **ELRC Case No. 1764 of 2016- Felister Njeri Waweru vs The Chairman Board of Governors Kairi** **Secondary School on 24th October 2024** whereby it held that the summary dismissal of the claimant was wrongful and that the claimant’s right to proceed on maternity leave was violated. It awarded the Applicant herein Kshs. 10,951/- for pay in lieu of notice and Kshs. 350,000/- as damages plus costs and interest on the awards at court rates from the date of judgment. 1. The jurisdiction of the Employment and Labour Relations Court is expressly circumscribed by **Section 12 of the ELRC Act** whereby **Section 12(3)** provides: **In exercise of its jurisdiction under this Act, the court shall have the power to make any of the following orders: -** 1. **Interim preservation orders including injunctions in cases of urgency;** 2. **A prohibitory order;** 3. **An order for specific performance;** 4. **A declaratory order;** 5. **An award of compensation in any circumstances contemplated under this Act or any written law;** 6. **An award of damages in any circumstances contemplated under this Act or any written law;** 7. **An order for reinstatement of an employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or** 8. **Any other appropriate relief as the Court may deem fit to grant.** 9. It is clear that the ELRC Court has jurisdiction to grant judicial review orders including if necessary, entertaining proceedings in respect of judicial review to enforce its own judgment in matters falling within its competence. 10. The High Court and the Employment and Labour Relations Court have concurrent jurisdiction and therefore this court cannot execute by way of judicial review a judgment emanating from a court of equal status. 11. Accordingly, this Court finds that it has no jurisdiction. The Application dated 21st April 2026 is incompetent and is hereby struck out. This file is closed. 12. I make no orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**