https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8807

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E433 OF 2025** AMKA AFRICA JUSTICE INITIATIVE......................................1ST PETITIONER BERYL ODINGA ........................................................................2ND PETITIONER VERSUS THE HONOURABLE ATTORNEY GENERAL ......................1ST RESPONDENT THE NATIONAL ASSEMBLY .................................................2ND RESPONDENT THE KENYA LAW REFORM COMMISSION.........................3RD RESPONDENT NATIONAL COUNCIL FOR CHILDREN’S SERVICES.........4TH RESPONDENT THE STATE DEPARTMENT FO CHILDREN SERVICES.....5TH RESPONDENT CABINET SECRETARY, MINISTRY OF EDUCATION.........6TH RESPONDENT CABINET SECRETARY, MINSTRY OF LABOUR AND SOCIAL PROTECTION..................................7TH RESPONDENT CABINET SECRETARY MINISTRY OF GENDER, CULTURE AND CHILDREN SERVICES.........8TH RESPONDENT **RULING ON JURISDICTION** 1. The petition dated 9/7/2025 seeks the following reliefs: 2. ***A declaration that the employment of children, except under apprenticeship and indenture learning, violates their right not to be subject to exploitative and hazardous work or environment, right to be protected from abuse neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and is a violation of the best interest of the child principle contrary to Article 53 of the Constitution, as read together with Section 18(1) of the children Act and Article 15 of the African Charter on the rights and Welfare of the Child.*** 3. ***A declaration that employment of children except under apprenticeship and indentured learning, irrespective of the nature of the work or activity, during school calendar days or hours amounts to a violation of the right to education, and thus unconstitutional, unlawful, irregular null and void.*** 4. ***A declaration that the employment of children of ages between thirteen and sixteen years in conditions that expose them to abuse, neglect, violence or exploitation and beyond apprenticeship and indentured learning is a direct violation of Article 53 (1) (d) and Article 25 of the Constitution, Section 22 of the Children Act, and Article 16 of the African Charter on the Rights and Welfare of Children, and hence unconstitutional, null and void.*** 5. ***A declaration that Section 56 of the Employment Act indirectly discriminates against children of ages sixteen and above from equal legal protection solely on the basis of age contrary to Article 27 of the Constitution hence unconstitutional, null and void.*** 6. ***A declaration that Section 18(4) of the Children’s Act Cap 141) Laws of Kenya violates and or threatens the fundamental rights and freedoms of children as guaranteed under Article 53(1) (b) (c) and (d) of the Constitution of Kenya to the extent that it permits employment of persons below the age of eighteen beyond apprenticeship and indentured learning, hence unconstitutional, null and void.*** 7. ***A declaration that the respondents, due to weak or absence of administrative preventive mechanisms, and by acts of omission on their part, have violated the right of children by allowing children to be engaged in employment beyond apprenticeship and indentured learning.*** 8. ***An order directing the 4th, 5th 7th and 8th respondents to hereby issue and gazette an indefinite moratorium on the employment of all children except in instances of apprenticeship and indentured learnership pending regularization of statutes to that end.*** 9. ***Any other relief that the Honourable court may deem right to grant.*** 10. ***Costs of the petition.*** 11. The petition is supported by the affidavit sworn by Milkah Wahu Kuria and Beryl Odinga sworn on 19th July, 2025. The petition is specifically bought under Articles 2, 3(1) 10, 19, 20, 21, 22,23, 24(1), (2), (3) 25, 28 30, 33, 53, 159, 258, 159 and 260 of the Constitution of Kenya, 2010. On the enforcement of fundamental rights and freedoms guaranteed to children in Kenya and the employment of children, the violation of their rights to basic education guaranteed under the constitution and the resultant effect on their physical and mental and social wellbeing in contravention of the best interest of the child principle under the industrial training Act, Cap 237 and the employment Act, Cap 226 Laws of Kenya and schedules IV and V of the Act; the Children’s Act, Cap 141 Laws of Kenya; the Basic Education Act 14 of 2013 and the International Labour Organization minimum age convention No. 138 and the International Labour Organization Worst Forms of Child labour Convention, the African Charter on the rights and welfare of the child and the convention on the rights of the Child. 12. The petitioners claim that the respondents have set the minimum age for admission to employment in Kenya as low as thirteen (13) years yet a child of 13 years cannot be said to be fully developed mentally and physically for purposes of entering into an employment contract; which is contrary to Article 1 of the International Labour Organization Minimum Age Convention No. 138 to which Kenya is signatory, which requires each member state to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. 13. Further, that Article 3 of the convention provides that the minimum age for admission to employment or work shall not be less than the age of completion of compulsory schooling. 14. According to the petitioners, the minimum age in Kenya for admission to employment being 13 years violates section 30, 33, and 38 of the Basic Education Act on compulsory basic education at primary and secondary levels; admission to a basic education of every child at age 4 and prohibition of employment of a child of compulsory school age which is between 4-18 years. 15. Further, that section 57 of the Employment Act prohibits written employment contracts for children of ages 13 and sixteen years. That children being vulnerable, are incapable of contracting, joining or forming or participating in any activities or programmes of a trade union unlike adults hence their rights have been violated from among others, guaranteed free and compulsory education, to be protected from hazardous and exploitative child labour; abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment; equality before the law and freedom from discrimination; best interest of the child principle. 16. Without going further, from the above extract of the petition, it is clear to this court that although the petition is about rights of the child, those rights are sought to be protected in the circumstances where they are alleged to be exposed to employment and labour relations at the age that the International Labour Organization Conventions and various Acts of Parliament and the Constitutional prohibit. 17. That being the case, this court would not have the dominant jurisdiction to hear and determine the petition which among others seek to declare section 56 of the Employment Act to be indirectly discriminating against children of ages 16 and above form equal legal protection solely on the basis of age, contrary to Article 27 of the constitution and to declare that section, among other reliefs null and void. 18. The Employment and Labour Relations Court is the court with exclusive jurisdiction to hear and determine disputes relating to Employment and Labour Relations as espoused in Article 162(2) (a) of the Constitution, whether that dispute is on the constitutionality of a statute on employment and labour relations or other disputes relating to employment and labour relation. 19. Whereas the High Court has jurisdiction to hear petitions concerning violation or threatened violation of the Constitution and rights of the child guaranteed under the Constitution, where those rights are cited in the context of Employment and Labour Relations of Children, the court with jurisdiction is the Employment and Labour Relations Court. 20. Furthermore, Article 165(5) (b) of the Constitution exclusively bars the High Court from hearing and determining disputes which are exclusively reserved for the Supreme Court and the courts contemplated in Article 162 (2) (a) and (b) of the Constitution those courts are the Employment and Labour Relations Court and the Environment and Land Court. 21. In view of the foregoing constitutional bar, and as jurisdiction is derived from the Constitution and statutes or both, not by consent of parties or by the court arrogating itself of jurisdiction that it is devoid of, this court cannot arrogate itself of jurisdiction that it does not have, and neither can the parties donate or consent to vest jurisdiction into the court. See **Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling**) decision by the Supreme Court on jurisdiction. 22. Additionally, jurisdiction is everything without which, a court of law acts in vain unless it downs its tools and say no more (see **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48].** 23. In this case, the petitioners should have, as I had guided, considered whether this court has jurisdiction, in view of the above constitutional provisions, considering that jurisdiction cannot be conferred by consent of parties. 24. It will be a waste of time and resources to hear this petition and find that the court is devoid of jurisdiction. It is for the above reason that I have on the court’s own motion, despite resistance by the petitioner’s counsel, made this determination to shield the court from embarrassingly rendering a decision that is incapable of enforcement for want of jurisdiction. 25. Jurisdiction can be raised at any time of the proceedings, by the parties or by the court on its own motion, as was stated in the **Owners of Motor Vessel Lilian S (supra)** case that: ***“A question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It was immaterial whether the evidence was scanty or limited. Scanty or limited facts constituted the evidence before the court…..”*** 1. The petitioner’s counsel attempted to resist the inquiry by the court on jurisdiction, saying that the issue had been raised earlier before my predecessor judge but the record does not reflect that the issue was considered at all. 2. That said, this court having examined the pleadings and responses and found that it is devoid of jurisdiction and further having found that the issues raised in the petition are those which the Employment and Labour Relations Court has jurisdiction over, I hereby down my tools and direct that the petition is hereby transferred to the Employment and Labour Relations Court for hearing and final determination on merits. 3. Accordingly, from this end, this file is hereby closed. **Dated, Signed and Delivered at Nairobi this 23rd Day of June 2026** **R.E ABURILI** **JUDGE**