[2025] KEELRC 950 (KLR)

Karimi v Bonfire Adventures & Events Ltd & 2 others (Employment and Labour Relations Cause E032 of 2025) [2025] KEELRC 950 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEELRC 950 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause E032 of 2025

BOM Manani, J

March 27, 2025

Between

Judy Karimi

Claimant

and

Bonfire Adventures & Events Ltd

1st Respondent

Simon Kabu

2nd Respondent

Sarah Njoki Nyaga

3rd Respondent

Ruling

1. Through a contract of service dated 14th June 2024, the 1st Respondent and the Claimant entered into an employment relationship under which the Claimant was to serve as a Housekeeper. The Claimant contends that the 1st Respondent assigned her the task of taking care of the children of the 2nd and 3rd Respondents and performing other housekeeping duties at the residence of the two Respondents.

2. The Claimant avers that shortly after she took up her aforesaid roles, the 3rd Respondent accosted her with accusations of having a sexual relationship with the 2nd Respondent. She contends that the 3rd Respondent threatened her with bodily harm, a development which saw her report the threats to the police.

3. The Claimant contends that despite reporting the matter to the police, the 3rd Respondent was not charged with a criminal offense. She believes that the police were reluctant to press criminal charges against this Respondent for ulterior reasons.

4. The Claimant contends that she sought the intervention of the office of Director of Public Prosecutions but did not manage to get the 3rd Respondent to be charged with a criminal offense. She contends that instead, the office of the Director of Public Prosecution persuaded her to enter into an out of court settlement with the Respondents. As a result, she contends that she was paid Ksh. 250,000. 00 in settlement of the dispute where after the contract of service between her and the 1st Respondent was terminated.

5. The Claimant contends that after the above events, the 2nd Respondent leaked CCTV footages of the altercations between her and the 3rd Respondent to social media influencers. As a consequence, the influencers splashed the content of the leaked information on various social media platforms on diverse dates between 4th December 2024 and 5th December 2024.

6. The Claimant is aggrieved by this turn of events. She contends that the impugned publications have damaged her reputation in the eyes of right thinking members of society. She contends that because of the leaked material, members of the public now consider her as a person of loose morals and a husband snatcher. It is her case that the publications have violated her right to dignity.

7. The Claimant avers that the Respondents did not warn her that they had installed secret video recording devises in the residence of the 2nd and 3rd Respondents thus causing her to be recorded without her knowledge and consent whilst undertaking her duties at the premises. It is her case that this violated her right to privacy.

8. It is for the foregoing reasons that she has instituted the instant proceedings to seek various orders as per her Statement of Claim. In the action, she, inter alia, seeks compensation for violation of her rights to privacy and dignity.

9. Contemporaneous with the Statement of Claim, the Claimant filed the application dated 21st January 2025. In the application she seeks interim orders of injunction prohibiting the Respondents from discussing and casting aspersions on her person during their interviews in various social media outlets pending hearing and determination of her case. She also prays for an order compelling the Respondents to produce in court CCTV footages depicting the scenes during which she was allegedly assaulted by the 3rd Respondent.

10. The 2nd and 3rd Respondents entered appearance in the matter. However, the 1st Respondent did not.

11. On 29th January 2025, counsel for the Claimant and the 2nd and 3rd Respondents attended court when it (the court) gave directions regarding filing of responses to and submissions on the application. Meanwhile, the matter was fixed for mention on 13th February 2025 for fixing a ruling date.

12. As the court record shows, despite the aforesaid directions the 2nd and 3rd Respondents did not file replying affidavits or grounds of opposition to the application. As well, all the parties did not file submissions on the said application.

13. Instead, the 2nd Respondent filed a preliminary objection to the application and suit on the following grounds:-a.That the application is frivolous, bad in law, vexatious and an abuse of the court process.b.That the court lacks jurisdiction to entertain the suit by virtue of sections 29(3) and 4(b) of the Employment and Labour Relations Court Act, 2011 (ELRC Act) and Gazette Notice No. 6024 of 2018. c.That the court lacks jurisdiction to entertain the case in view of the provisions of article 162 (2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011. d.That the suit is defective and ought to be struck out.

14. On 13th February 2025, only the advocates for the Claimant and the 2nd Respondent attended court. They informed the court that they had filed submissions on the preliminary objection. As such, they asked for a ruling date on the objection. Following this request, the court fixed the matter for ruling on the objection on 27th March 2025.

Analysis 15. As correctly pointed out by the Claimant’s Advocates, a preliminary objection should be confined to pure points of law. Further, it should only be entertained when the facts informing the objection are not in contestation (see Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696).

16. The objection ought to arise by implication from the pleadings filed. Further, it should be one which, if successfully urged, will dispose of the suit. Examples of what comprises a preliminary objection are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. (Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696).

17. Apart from the various other objections which the 2nd Respondent has alluded to in the Notice of Preliminary Objection, it has challenged the court’s jurisdiction to entertain the application and suit. This objection is two pronged.

18. First, the 2nd Respondent contests the court’s jurisdiction to entertain the suit on account of section 29(3) of the ELRC Act as read with Gazette Notice No. 6024 of 2018. Second, it (the 2nd Respondent) challenges the court’s jurisdiction over the dispute on the basis of article 162(2) of the Constitution as read with section 12 of the ELRC Act.

19. The first limb of the objection that is anchored on section 29(3) of the ELRC Act and Gazette Notice No. 6024 of 2018 challenges the court’s jurisdiction on account of the concept of monetary jurisdiction. The second limb which is anchored on article 162(2) of the Constitution as read with section 12 of the ELRC Act questions the court’s jurisdiction on account of absence of an employment or labour relationship between the disputants, a factor that is central to the court assuming jurisdiction over disputes that are presented before it.

20. As will be seen later in the decision, the Claimant acknowledges that at the time the matters which gave rise to the cause of action herein (the impugned publications through social media on 4th and 5th December 2024) occurred, the employment relationship between her and the 1st Respondent had ceased. On the other hand, the 2nd Respondent does not contest this fact. As a matter of fact, the fact that this Respondent has challenged the court’s jurisdiction on account of absence of an employment relationship between the parties affirms that it (the 2nd Respondent) is in agreement with the Claimant that her employment with the 1st Respondent ceased before the cause of action that gave rise to the suit arose.

21. The foregoing being the case, the instant preliminary objection fits the prescription of a preliminary objection as set out in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696. First, it challenges the court’s jurisdiction to entertain the case which, to my mind, comprises a pure point of law. Second, the basis upon which the second limb of the objection is raised (the absence of an employment and labour relation between the parties at the time the cause of action arose on 4th and 5th December 2024) is not contested by the parties.

22. The thrust of the 2nd Respondent’s contention with regard to the issue of monetary jurisdiction is that the Claimant’s monthly salary was below Ksh. 80,000. 00. As such, this action ought to have been presented to the Magistrate’s Court in line with section 29(3) of the ELRC Act as read with Gazette Notice No. 6024 of 2018. Accordingly, this court has no pecuniary jurisdiction to entertain the case.

23. It is true that the aforesaid Gazette Notice empowers the Magistrate’s Court to entertain employment and labour relations disputes arising from contracts of service in which the employee’s monthly salary is below Ksh. 80,000. 00. From the Claimant’s letter of appointment, her monthly salary was Ksh. 36,000. 00. As such, it is correct as the 2nd Respondent points out that all factors remaining constant, the suit ought to have been presented to the Magistrate’s Court.

24. However, the fact that the above provisions of statute and Gazette Notice donate power to the Magistrate’s Court to entertain employment and labour disputes where the employee’s monthly salary does not exceed Ksh. 80,000. 00, does not oust the jurisdiction of this court to entertain such matters. Section 12 of the ELRC Act grants this court original and exclusive jurisdiction over all employment and labour relation disputes including those which fall within the purview of a Magistrate’s Court by virtue of the aforesaid Gazette Notice. As such, the objection by the 2nd Respondent in this respect would, on this basis alone, be devoid of merit.

25. But there is another angle to the matter. In the Statement of Claim, the Claimant contends that the Respondents’ actions violated her rights to privacy and dignity. Consequently, she prays for compensation for violation of these rights.

26. Article 23(2) of the Constitution contemplates a scenario where a Magistrate’s Court may entertain disputes relating to alleged violation of constitutional rights. However, this may only happen if Parliament has, through legislation, donated this jurisdiction to the said court.

27. Although section 29 of the ELRC Act empowers the Chief Justice to authorize the Magistrate’s Court to entertain certain employment and labour relations disputes, the said section cannot be relied on to push the narrative that a Magistrate’s Court has power to preside over employment and labour relations disputes which seek redress for alleged violation of constitutional rights. Nothing in the provision suggests that Parliament has granted the Magistrate’s Court such jurisdiction. As such, even though an employment and labour relations dispute may be perceived to fall within the jurisdiction of the Magistrate’s Court by reason of the aforesaid Gazette Notice, such dispute will be removed from this court’s jurisdiction if it raises grievances involving violation of constitutional rights.

28. The foregoing being the case, only this court (the Employment and Labour Relations Court) is entitled to adjudicate on such disputes in order to address the alleged violation of rights. The fact that this court enjoys this jurisdiction was confirmed in the decision of United States International University (USIU) v Attorney General & 2 others [2012] eKLR. As long as the alleged violations of the Constitution are indicated to have arisen from the employment and labour relation, this court, and not the Magistrate’s Court, is entitled to redress them. As such, the 2nd Respondent’s objection premised on section 29 of the ELRC Act as read with Gazette Notice No. 6024 of 2018 fails.

29. The other objection is anchored on article 162 (2) of the Constitution as read with section 12 of the ELRC Act. The 2nd Respondent contends that by virtue of these provisions, this court can only entertain disputes that have arisen from an employment and labour relation. Indeed, various decisions by the Court of Appeal suggest that for this court to assume jurisdiction over a matter, the cause of action must have arisen during the subsistence of an employment and labour relation (see for instance Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated)) [2022] KECA 15 (KLR) (8 February 2022) (Judgment)).

30. It is true that the 1st Respondent and Claimant had an employment relationship, albeit for a short duration. The Claimant has provided evidence of the relation in the form of an employment contract between her and the 1st Respondent. According to the contract, the two entered into the employment relation on 14th June 2024.

31. The Claimant avers that shortly after the relation commenced, the 3rd Respondent (a director of the 1st Respondent and the 2nd Respondent’s spouse) accused her of having an affair with the 2nd Respondent. She contends that these accusations resulted in altercations between her and the 2nd and 3rd Respondents which were reported to the police.

32. The Claimant contends that after intervention by the office of the Director of Public Prosecution, the parties agreed to settle the dispute through diversion. At paragraph 38 of her supporting affidavit, she avers that the settlement was reached on 15th October 2024. At paragraph 20 of her Statement of Claim, she avers that after the aforesaid settlement, the employment relation between her and the 1st Respondent ceased. As such and if the foregoing is anything to go by, the Claimant, through her pleadings and affidavit, confirms that the employment relationship she had with the 1st Respondent terminated on 15th October 2024 after settlement of the dispute she had with the Respondents.

33. The Claimant avers that after these events, the 2nd Respondent leaked CCTV footages depicting her as a person of immoral character. She contends that the leaked footages were circulated by social media influencers on diverse dates between 4th December 2024 and 5th December 2024.

34. It is these events of 4th and 5th December 2024 which triggered this action. As such, the Claimant’s cause of action stems from these events.

35. As noted earlier and from the Claimant’s own filings in court, the employment relationship between her and the 1st Respondent was closed on 15th October 2014 after the dispute between her and the Respondents was settled through diversion. As such, when the impugned events of 4th and 5th December 2024 which triggered this suit happened, there was no subsisting employment relation between the parties.

36. This begs the question whether this court is entitled to assume jurisdiction over the dispute. I think not.

37. By virtue of section 12 of the ELRC Act, this court can only entertain disputes which stem from an employment and labour relation or other related disputes as covered under the provision. Further, the employment and labour relation that gave rise to the cause of action must have been subsisting at the time the cause of action arose.

38. This appears to be the position that was taken by the Court of Appeal in the case of Public Service Commission & 4 others v Cheruiyot & 20 others (supra). In the case, the Petitioners who had resigned from their positions at the County Government of Embu in order to vie for elective seats sought to rescind their resignations after they had been accepted by the County Government and crystalized. The County Government rejected the attempts to rescind the resignations contending that they had already taken effect thus effectively terminating the Petitioners’ employment with it (the County Government). The County Government further contended that the positions which the Petitioners had resigned from had already been filled. As such, their (the Petitioners’) resignations could not be reversed.

39. Before the trial court, the County Government of Embu raised an objection to the court’s jurisdiction to entertain the action. The trial court overruled the objection.

40. On appeal, the Court of Appeal observed as follows:-“The 2nd, 3rd and 4th petitioners in the consolidated petitions (2nd to 4th respondents in the consolidated appeals) had separately tendered their one-month resignation notices from their respective positions which they held in the County Government of Embu. Their resignation notices were given in conformity with the provisions of section 43(5) of the Elections Act, 2011. Their respective resignation notices dated January 5, 2017 and 6th January were accepted by the Governor, County Government of Embu; the respondents were asked to hand over their respective dockets to their appointed successors; they were cleared, and their respective dues processed. The resignation notices were to take effect on 5th February 2017 and on 6th February 2017 respectively. On February 7, 2017 when the resignations were to take effect, the respondents sought to revoke their separate letters of resignation upon learning of the interim court order issued by the trial court on 18th January 2017 barring the IEBC from disqualifying public servants from participating in the 2017 general election for not vacating office six months prior to the general election. By this time the one-month notice period had already lapsed, meaning that their respective resignation notices had already crystallized………..The 2nd to 4th respondents having resigned, their resignations having been formally accepted, their dues paid, and their respective positions filled meant that their resignation notices had already crystallized. There was nothing to go back to. The employee-employer relationship between the 2nd to 4th respondents and the County Government of Embu had already come to an end. The Employment and Labour Relations Court ought to have arrived at this finding and immediately downed its tools.’’

41. It is noteworthy that the grievance of the Petitioners in the aforesaid case was that it was unconstitutional for the Independent Electoral and Boundaries Commission to insist that they resign six month prior to an election in order for them to participate in it (the election). As such, they sought that the County Government of Embu allows them to rescind their resignation and reinstates them back to their position. When the County Government rejected the request, the Petitioners moved to court to challenge the decision. As such, the trigger for the suit (the cause of action) was the refusal by the County Government to allow the Petitioners to rescind their letters of resignation, an event which took place after the employment contracts between the parties had ceased.

42. The position by the Court of Appeal, it would appear, was that since the trigger for the suit (the refusal by the County Government to accept the Petitioners’ requests to rescind their resignation) happened after the employment relation between the parties had come to a close, the matter fell outside the jurisdiction of the Employment and Labour Relations Court. As such, the trial court ought to have downed its tools in relation to the case.

43. A similar position appears to have been taken by the Supreme Court in the case of Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (Petition 3 of 2016) [2019] KESC 83 (KLR) (8 November 2019) (Judgment). In the suit, former employees of the Kenya Ports Authority sued the administrator of their pension scheme contending that their pension benefits had been wrongly calculated to their detriment. The Supreme Court was called upon to address the question of which forum – the High Court, the Employment and Labour Relations Court, the Chief Executive Officer of the Retirement Benefits Authority and the Retirement Benefits Appeals Tribunal - was entitled to determine the dispute.

44. Whilst analyzing the jurisdiction of the Employment and Labour Relations Court, the Supreme Court observed that the Employment and Labour Relations Court was mandated to deal with disputes that are prescribed under section 12 of the ELRC Act which should be anchored on an employment and labour relation. The court observed that the provision did not grant the Employment and Labour Relations Court jurisdiction over disputes between pensioners and administrators of pension funds or pensioners and sponsors of pension funds.

45. It is to be noted that pensioners stand in the position of former employees of the sponsor of such a fund. In effect, I understand the court to have been saying that once the employment relation between the sponsor and pensioners comes to an end, the relation between the two transforms from one of employer-employee to settlor-beneficiary of the pension fund. Consequently, any disputes that may arise from management of the fund after closure of the employment relation between the pensioner and sponsor does not fall within what is contemplated under section 12 of the ELRC Act. As such, the Employment and Labour Relations Court will have no jurisdiction over such dispute.

46. In the case before me, the cause of action between the parties was triggered by the impugned social media publications that occurred on 4th and 5th December 2024 after the employment relation between the Claimant and the 1st Respondent had come to a close on 15th October 2024. As such and absent an employment relation between the parties, this court cannot assume jurisdiction over the dispute.

47. But even assuming that the Claimant was entitled to approach this court on the basis of the employment relation she previously had with the 1st Respondent, would the court have been entitled to entertain the dispute? I think not.

48. A perusal of the Statement of Claimant confirms that the employment relation was between the Claimant and the 1st Respondent: not the 2nd and 3rd Respondents. Although the Claimant was assigned to render services at the residence of the 2nd and 3rd Respondents, the contract she has placed on the court record demonstrates, without a shadow of doubt, that she was an employee of the 1st Respondent. As such, the fact that the 1st Respondent assigned her duties within the residence of the 2nd and 3rd Respondents did not convert the 2nd and 3rd Respondents into her employers.

49. At paragraphs 2, 3 and 4 of the Statement of Claim, the Claimant avers that the 1st Respondent is a limited liability company. On the other hand, she describes the 2nd Respondent as shareholder, Chief Executive Officer of the 1st Respondent. She further describes the 3rd Respondent as Managing Director of the 1st Respondent.

50. In law, a limited liability company is a distinct legal entity with a life that is separate from that of its employees and shareholders (Joseph Kobia Nguthari v Kiegoi Tea Factory Company Limited & 2 others [2016] eKLR). As such the 1st Respondent is distinct and separate from the 2nd and 3rd Respondents.

51. Consequently, the fact that the 1st Respondent had employed the Claimant did not convert her into an employee for the 2nd and 3rd Respondents. In effect, there was no employment relation between her and the 2nd and 3rd Respondents.

52. A cursory perusal of the Statement of Claim discloses that the gravamen of the Claimant’s complaint is the conduct of the 2nd and 3rd Respondents which allegedly maligned her character. There is no suggestion that the impugned actions by the 2nd and 3rd Respondents were done in execution of their mandate as agents of the 1st Respondent. As such, there is nothing to link the 1st Respondent to the impugned actions by the 2nd and 3rd Respondents.

53. The Claimant’s grievances having arisen from the acts of the 2nd and 3rd Respondents who were not the Claimant’s employers, they cannot be the subject of litigation before the Employment and Labour Relations court whose jurisdiction is triggered by the presence of an employment and labour relation between the disputants. As such, this court has no jurisdiction to adjudicate on disputes arising from the disagreements between the Claimant and the 2nd and 3rd Respondents.

54. The foregoing was alluded to in the Court of Appeal case of Public Service Commission & 4 others v Cheruiyot & 20 others (supra) in relation to some of the Petitioners who had sued the County Government of Bomet but who were not employees of the said County. It was also alluded to in the Supreme Court case of Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (supra) in relation to the suit by the pensioners against the Pension Fund Administrator.

55. In the court’s view, the proper forum for the Claimant’s grievance is the High Court of Kenya which has unlimited jurisdiction to adjudicate on violation of constitutional rights generally. The Employment and Labour Relations Court can only entertain such dispute if it arises from an employment and labour relation between the parties which is lacking between the Claimant on the one hand and the 2nd and 3rd Respondents on the other hand.

56. It has been said time and again that a court of law derives its jurisdiction from either the Constitution or statute. Where neither of these legislations has donated jurisdiction to the court, it (the court) must not try to expand its mandate through judicial craft (Aluochier v Independent Electoral and Boundaries Commission & 17 others (Petition 20 (E023) of 2022) [2022] KESC 77 (KLR) (Civ) (20 December 2022) (Judgment)).

57. At the same time, it must be understood that jurisdiction is everything. Without it, the court cannot adjudicate on a dispute. And if it purports to, its decision is a nullity (Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). As such, I will not attempt to expand this court’s jurisdiction through judicial craft to adjudicate on the instant dispute as this will be an exercise in futility.

Determination 58. The upshot is that I find that this court lacks jurisdiction to entertain the instant dispute.

59. As such, the matter is struck out.

60. I make no order as to costs.

DATED, SIGNED AND DELIVERED ON THE 27THDAY OF MARCH, 2025B. O. M. MANANIJUDGEIn the presence of:…………. for the Claimant/Applicant………………for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI