https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8206

MR (Suing as mother and next friend of LR - Minor) & another v Mairura & 7 others (Constitutional Petition E282 of 2023) [2026] KEHC 8206 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8206 (KLR) Republic of Kenya In the High Court at Thika Constitutional Petition E282 of 2023 LN Mugambi, J June 11, 2026 Between MR (Suing as mother and next friend of LR - Minor) 1st Petitioner JM (Suing as mother and next friend of CMA - Minor) 2nd Petitioner and Victor Mairura 1st Respondent Vugutsah Ndayala 2nd Respondent The Board of Management Parklands Arya Girls Secondary School 3rd Respondent Abongo Oching 4th Respondent Joy Puzoh 5th Respondent Clementine Sila 6th Respondent and Kenya national Human Rights Commission 1st Interested Party The Teachers Service Commission 2nd Interested Party Ruling Introduction 1.The Application dated 10th May 2025 seeks to strike out the Petition on the basis that this Honourable Court lacks of jurisdiction to entertain the same. The applicants further contend that the statement of facts relied on in the Petition is scandalous, vexatious and an otherwise abuse of the court process hence should be struck out. 2.The petitioners/respondents filed a replying affidavit dated 9th June 2025, in opposition to the Application. The 2nd – 6th Respondents/Applicants’ Case 3.The applicants assert that the facts upon which the Petition is founded are outside the constitutional jurisdiction of this Honourable Court. They contend that the matter is within the competence of the Employment and Labour Relations Court pursuant to Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act hence the matter cannot be entertained by this Court. 4.The applicants averred the Petitioners case is that on 20th June 2023 and 21st June 2023, the minors were alleged to have engaged in indecent acts/behaviours associated with lesbian, gay, bisexual and transgender (LGBTQ). As a result, some of the school’s teachers and administrators- the 2nd to 6th respondents and a matron by the name Agnes allegedly unjustifiably perpetrated physical, psychological and sexual assault against the minors. 5.That on 21st June 2023 at 7.30 pm, LR, a minor was summoned by the 3rd respondent to a building or room known as the “sick room” within the school premises where she was confronted with accusations of engaging in, and, or being associated with, the said indecent acts. Further the 3rd respondent in the company of the matron, Agnes assaulted LR physically with a wooden mopping stick and slapped her on the whist in a bid to extract a confession from her in respect of the allegations. 6.Further, the 3rd respondent in the company of the matron Agnes threatened further violence on L.R. if she failed to comply to confess. LR was afterwards dragged to the dormitory where the more physical and psychological violence continued for three (3) hours whereby L.R was forced, coerced and/or intimidated into giving confessions on foolscaps handed over to her during the violent interrogation. 7.On 20th June 2023, C.M.A, another minor was summoned to the sick room by the 3rd respondent on allegations of participating in indecent acts. The 3rd respondent would ridicule, insult and/or mock and tribally profile the minor to the effect that “umetoka Kakamega na unataka kutuletea mapepo yako huku” which means “you are from Kakamega and want to bring your demons here” and which statement was meant and/or intended to profile the minor on account of her tribe. The 3rd respondent further brutally interrogated her family background including the financial status of her family. 8.C.M.A was physically and psychologically assaulted by the 2nd to 6th respondents in the company of madam Agnes and Ms. Maxmilla. In some instances, the respondents used a wooden mopping stick, a metal bar in addition to slapping her around. The minor was also later dragged to the dormitory where the physical and psychological violence went on continuously until 10.45 pm. C.M.A was forced, coerced and/or intimidated into giving a confession in writing on foolscaps during the violent ordeal. 9.On 21st June 2023 at 8.40 am the minor CMA was again summoned to the sick room where she was further assaulted by the 2nd, 5th and 6th respondents. The 6th respondent partially stripped the minor and severally made physical contacts with her private parts and demanded the minor shows the ‘reproductive male organ’ referring to her as “mbaba” and “mwanamume” which terms translates in their ordinary meaning and/or reference to “man.” The striping and sexual assault happened before the 2nd and 5th respondents. 10.Further the 6th respondent stripped the C.M.A of her clothes to ascertain whether she possessed male reproductive organ and to examine whether she had engaged in the alleged sexual indecency. Additionally, the 6th respondent accused the minor of having changed her name Maria to simply Adams and trimming her hair short, describing the conduct as indicative of the orientation towards the sexual indecency and/or association. 11.The minors L.R. and C.M.A were then suspended from school until 7th July 2023 and 10th July 2023 respectively and directed to bring along the applicants-their respective parents and next of kins. C.M.A developed complications afterwards and was treated at Kenyatta National Hospital. She reported the assault at Parklands Police Station under Occurrence Book (O.B) No. 44 of 23rd June 2023 and also obtained a medical examination report. 12.The Respondents contend that the forgoing allegations are scandalous and vexatious and invite the Court to strike out statements of facts containing the allegations terming them an abuse of the Court process. The Petitioners’/Respondents’ Case 13.The Petitioners/respondents in response countered that the application misconceives the petition as encompassing a labour dispute yet in contrast, Petition is about gross and profound violations of the minors’ rights and fundamental freedoms as learners who were under the direct supervision of the 2nd to 6th respondents. 14.Further, the Petitioners contended that none of the prayers sought in the Petition is labour related hence the applicants’ assertions are totally misplaced. 15.The respondents reveal that the instant application is merely meant to scuttle and subvert the course of justice by denying them a hearing of the petition on merits. The Petitioners accused the 2nd applicant of applying tactics to ensure the instant petition will never be heard substantively by filing vexatious applications one after the another without prosecuting them for instance, the notice of preliminary objection dated 25th September 2023, the application dated 21st November 2024 which the 2nd applicant withdrew; application dated 2nd December 2024 which was withdrawn on 26th February 2025 and the 2nd applicant’s outgoing advocate one P.G. Kaingu filed an application dated 16th November 2023 which he also failed to exhaustively prosecute and the 2nd applicant conceded to its determination by the court suo moto on 26th February 2025. Further, the 2nd applicant failed to serve the applications dated 21st November 2024 and 2nd December 2024 to the Hon. Attorney General which conduct was simply a ploy to waste the time of the court and delay of the hearing of the petition. 16.The Petitioner aver that the petition raises immensely important issues touching on gross and incomprehensible levels of violations of constitutional rights and fundamental freedoms of the minors who are school-going. The Petitioners contend that the matter involves minors in itself shows the gravity of the matter and the need to expedite hearing. The respondents further countered that the applicants’ contention that the instant suit has caused them mental anguish, shame and embarrassment to the extent of seeking professional assistance is not an issue for consideration or determination before the court. 17.In any event, the applicants have brought all their tribulations, if any, upon themselves and are aggravating the situation by their careless and unremorseful frustration of the matter through dubious and outlandish applications. 18.The applicants filed a Supplementary Affidavit dated 26th August 2025 and states that the petitioners are well aware that the first port of call in respect of their complaint was the Teachers Service Commission through its agent, the Board of Management of Parklands Arya Girls Secondary School. By a letter dated 4th July 2023, the petitioners’ advocates complained to their employer on the issues of the petition and ten days later, before their employer could process the complaint, they wrote a further letter dated 14th July 2023 to their employer to the effect that they are no longer interested in any resolution for they had decided to move to court, which they did by filing the instant suit. Nonetheless, the Teachers Service Commission carried out investigations on the matter between 5th and 8th of September 2023 and later issued them with show cause letters dated 16th October 2023 and further interdictions dated 5th December 2023. The hearing was conducted on 1st February 2024, and the Teachers Service Commission suspended them for a period of 3 months without pay as punishment with effect from 1st February 2024 and the case concluded. 19.The applicants aver that the guilty finding was merely to please the petitioners and was not based on facts and they abstained from appealing due to the scandalous and vexatious nature of the complaint. 20.Parties put in written submissions. The Applicants’ Submissions. 21.The applicants listed the issues for determination as whether the jurisdiction over the subject matter falls under this honourable court or the employment and labour relations court; whether the petitioner violated the principles of exhaustion and whether they should have sued the Teachers Service Commission if at all and whether the petition is scandalous, vexatious and an abuse of the court process. 22.On the issue of jurisdiction, the applicants argue that the jurisdiction of the employment and labour relations court flows from Article 162(2) of the Constitution and Section 12 of the Employment and labour Relations Court Act. Further Section 10 of the Employment Act refers to employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship while Section 12(1) of the Act provides as thus: -A statement under section 10 shall-a.Specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;b.Specify the person to whom the employee may apply-i.If dissatisfied with any disciplinary decision relating to the employee; andii.For the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; andc.Where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps. 23.Further Section 86 of the Employment Act provides as thus:-1.Subject to the provisions of this Act whenever-a.An employer or employee neglects or refuses to fulfil a contract of service; orb.Any question, difference or dispute arises as to the rights or liabilities of either party; orc.Touching any misconduct, neglect or ill treatment of either party or an injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.2.No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection 1. 24.The applicants submit that the employment and labour relations court is the forum to deal with any other fundamental rights and freedoms arising out of employment and labour relations. Reliance was placed in the case of United States International University (USIU) vs Attorney General Nairobi [2012] eKLR:-Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court. 25.Further reliance was placed in the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling):-It is without doubt that the gist of the petitioner’s complaint hinges around the 1st respondent’s conduct as an employee of the 4th respondent. The Petitioner complains about the 1st respondent’s alleged alcoholism which she claims has hindered the ability of the 1st Respondent to make good judgment in execution of her duties at as a public officer employed by the 4th Respondent.The Employment Act under Section 12 (1) provides as follows:Statement on disciplinary rules1.A statement under Section 10 shall—a.specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;b.specify the person to whom the employee may apply—(i)if dissatisfied with any disciplinary decision relating to the employee; and(ii)for the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; andc.where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.Section 10 of the Act refers to the Employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship.Section 86 of the Act defines the scope of disputes and the manner in which the same are to be determined. This Section provides as follows:Complaint and jurisdiction in cases of dispute between employers and employees2.Subject to the provisions of this Act whenever—a.an employer or employee neglects or refuses to fulfill a contract of service; orb.any question, difference or dispute arises as to the rights or liabilities of either party; orc.touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.(2)No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection (1).(3)This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.In this petition, the petitioner contends that the 1st respondent’s conduct as a public officer employed by the 4th respondent affects 1st respondent ability to make good judgments and work diligently. Clearly, the substratum of the Petition rests on the 1st Respondent employment with the 4th Respondent.In the landmark decision of Republic vs Karisa Chengo & 2 others (Petition 5 of 2015) [2017]KESC15 (KLR0, the Supreme Court clarified the jurisdiction of Special Courts under Article 162 vis-à-vis the High Court held as follows:“[50] It is against the above background, that Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. … The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.”(51)Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions…”The Court went on to further state:“…[52] … As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”Considering that the gist of this Petition centers around the conduct of the 1st Respondent as an employee of the 4th Respondent, it follows that the Court with jurisdiction over this matter is the Employment and Labour Relations Court even assuming that the matter raises a constitutional question. Employment and Labour Relations Court has the jurisdiction to interpret the Constitution in matters falling within the scope of its jurisdiction. This was the holding of the Court of Appeal in Attorney General & 2 Others vs Okiya Omtata & 11 Others (2020) eKLR where the Court held thus:“We have no doubt that the ELRC and ELC have jurisdiction to interpret and apply the Constitution as held by the High Court in United States International University v The Attorney General (2012) eKLR and this Court in Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR. However, the jurisdiction of those specialized courts to interpret and apply the Constitution is not original or unlimited like that of the High Court. It is limited to constitutional issues that arise in the context of disputes on employment and labour relations on environment and land matters…” 26.The applicants further referred to the case of Hezekiah Chepkwony& 2 Others vs Cabinet Secretary Ministry of Health & 2 Others [2020] eKLR which determined that:-Unlike the private sector where terms of service are regulated purely by the contract of service between the parties involved, in the public sector the contract of service is regulated by both the contract of service signed between the parties in addition to the Human Resource Policies and Procedures Manual for the public Service and a mosaic of public law which includes the Constitution, statutes, subsidiary legislations, government circulars and legal notices among others. 27.The applicants referred to Section 59(f) of the Basic Education Act which provides that:-The functions of the Board of Management of a basic education institution shall be to determine cases of pupils’ discipline and make reports to the County Education Board. 28.The applicants asserted that in the instant petition, while in pursuit of implementation of the immediate foregoing statutory contractual performance of investigation of involvement of students in sexual misconduct described by petitioners themselves as lesbianism, gay, bisexual and transgender admitted by students themselves and which sexual misconduct is contra-statute in terms of school rules and regulations; the respondents were themselves turned against and accused by the petitioners of engaging in misconduct in the course of the foregoing performance of their duties provided at Section 34(2) of the Teachers Service Commission Act as read with schedule 3. 29.Furthermore, Regulations 144 to 154 of the Teachers Service Commission Code of Regulations for Teachers provide for the procedure for reporting any misconduct by teachers and the disciplinary procedure including investigations, interdictions and punishment. Particularly Regulation 144(1) and 145(1) provide that:-A person having any allegations of misconduct against a teacher may report the allegation to the Secretary Board of Management.Any person with information that a teacher has engaged in professional misconduct or any conduct contravening these regulations may lodge a complaint in writing, clearly indicating the nature of the complaint. 30.The applicants submitted that the petitioners concealed from the court that the Teachers Service Commission had subjected them to three months suspension without pay as punishment with effect from 1st February 2024 upon the commission carrying out investigations on the complaint and serving them with notice to show cause letters dated 16th October 2023. Thus considering the gist of the petition centres around the conduct of the applicants as employees of the 2nd interested party and the 1st respondent, it follows the court with jurisdiction over the said matter is the Employment and Labour Relations Court. 31.On the second issue for determination, reliance was placed on the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling) where the court held:-The doctrine was discussed by the Supreme Court in Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR where the Court observed thus:“[51] Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism…”Applying the same principle, the High Court in the case of Law Society of Kenya v Attorney General & Another; National Commission for Human Rights & Another (Interested Parties) (2020) eKLR held as follows:“…Where the Constitution has reposed specific functions in an institution or organ of the State, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution…”It follows therefore that in respect of violation relating to leadership and integrity provisions; such as allegations that the 1st Respondent misconduct violates Chapter Six of the Constitution and the provisions of the Leadership and Integrity Act; the body that is charged with the responsibility of overseeing compliance with those provisions by public officer is in the first instance the Ethics and Anti-Corruption Commission in the light of the specific responsibility under Section 4 (2) & (3) of the Leadership and Integrity Act.It was therefore premature for the Petitioner institute this Petition before giving the Ethics and Anti-Corruption Commission a chance to enquire into and ascertain the allegations against the 1st Respondent.This Court will not be rushed to intrude into matters that generally fall within the area of responsibility of other institutions or agencies of Government. There was haste in invoking the jurisdiction of this Court prematurely. The petition thus offends the doctrine of abstention. 32.Further reliance was placed on Regulation 156(1) and (8) of the Teachers Service Commission Code of Regulations which provides:-There is established an adhoc Committee of the Commission known as Teachers Service Review Committee which shall consider and determine reviews arising from the discipline process under these regulations.The Review Committee shall upon receiving an application for review, consider the application and may-a.Uphold the decision and subsequently dismiss the application for review;b.Allow the review and set aside the decision; orc.Vary the decision on such terms as it may deem fit. 33.The applicants argued that if the petitioners were dissatisfied with the commission’s final decision of their punishment, they had the option of suing the employer, the Teachers Service Commission in the employment and labour relations court for damages or for review of its decision. 34.On the final issue of determination, reliance was placed in the decision of Elijah Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Alliance vs Mara Conservancy & 5 Others [2014] KEHC 4420 (KLR) where the court held that:-However, for purposes of striking out a pleading under Order 2, rule 15, the word “scandalous” is not limited to the “indecent”, “offensive” and “the improper” and that the denial of a well known fact can also be rightly described as scandalous but may not be scandalous of the matter. J. B. MACHARIA VS. WANGECHI MWANGI & NATION NEWSPAPERS LTD (Nairobi Civil Appeal No. 179 of 1997). However scandalous is relevant and admissible in evidence in proof of the truth of the allegation in the plaint or defence so that when considering whether the matter is scandalous regard must be had to the nature of the action.According to the authors of BULLEN & LEAKE & JACOBS PREDENTS OF PLEADING (12th Edn) – a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless and offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense.”A matter is said to be “vexatious” when -(i)it has no foundation, or(ii)it has no chance of succeeding, oriii.the pleading (plaint or defence), is brought merely for the purpose of annoyance, oriv.it is brought so that the party's pleading should have some fanciful advantage, orv.where it can really lead to no possible good (per WILLIS VS. EARL BEAUCHAMP (1866) 11 PD 59).A pleading is an abuse of the process where it is frivolous or vexatious or both; but where the pleading as it stands is not really embarrassing – it is wiser to leave it un-amended or to apply for further particulars – KEMSLEY VS. FOOT [1952] A.C. 325. 35.The applicants argued that the fact that the allegations are of criminal nature having been reported as assault to Parklands Police Station under Occurrence Book (OB) No. 44 on 23rd June 2023 and obtaining a medical examination report, P3 Form and the failure of any charges preferred against them is a testament that the allegations are baseless and have no chance of success. The Petitioners’/ Respondents’ Submissions. 36.The respondents list the issues for determination as whether this Honourable Court has jurisdiction to hear the matter; whether the petition herein is scandalous, vexatious and an abuse of the court process and whether the application is merited. The respondents argued that the applicants’ arguments are basically based on two grounds that the instant dispute is labour related and that the 2nd interested party having already undertaken disciplinary action against the applicants, their course of action is moot or fully canvassed. 37.The Petitioners/respondents submitted that the preamble to the Teachers Service Commission Act states that the Act serves to make further provision for the Teachers Service Commission established under Article 237 of the Constitution, its composition; functions and powers; the qualifications and procedure for appointment of members; and for connected purposes. The Act is primarily meant to provide for the creation and regulation of the 2nd interested party in accordance with Articles 237 and 248(2)(i) of the Constitution and the relationship between the 2nd interested party and registered teachers across the country. Sections 11 and 12 of the Act clearly indicate that the functions and powers of the 2nd interested party relate to either the 2nd interested party itself as well as teachers registered by the 2nd interested party. Further Section 11 of the Act provides that the functions of the 2nd interested party inter alia is to ensure that teachers comply with the teaching standards prescribed by the TSC under the Act; manage payroll of teachers in its employment; facilitate career progression and professional development for teachers in the teaching service including the appointment of head teachers and principals; and monitor the conduct and performance of teachers in the teaching service. 38.The Petitioners/ respondents submitted that Part III of the TSC Act deals with the registration and Discipline of Teachers and Compliance with teaching standards. Article 237(2) of the Constitution provides that the functions of the 2nd interested party are to register trained teachers; to recruit and employ registered teachers; to assign teachers employed by TSC for service in any public school or institution; to promote and transfer teachers; to exercise disciplinary control over teachers and to terminate the employment of teachers. Sections 33 and 34(3) of the TSC Act provides that the 2nd interested party after interdicting a teacher is empowered to take disciplinary actions against a registered teacher, including by way of issuance of a warning letter, surcharging the teacher; suspending the teacher for such period not exceeding six months; cancelling a registration certificate and removing the name of the teacher from the register; retiring the teacher in public interest; dismissing, terminating services; or any other lawful actions as it may consider appropriate. The respondents asserted that the limited context of the disciplinary mechanism is circumscribed to the regulator’s disciplining its member for any work-related transgressions and the jurisdiction has nothing to do with the remedies applicable in law to the particular victims of such transgressions. 39.The respondents outlined the jurisdiction of the employment and labour relations court established under Article 162(2) of the Constitution and Section 4 of the Employment and Labour Relations Court Act which is to determine disputes relating to employment and labour relations with its jurisdiction circumscribed to disputes specifically within the contours of employer employee relationship. Section 12 further elaborates the said context and it provides that the jurisdiction of the ELRC relates to employment and labour relations including: disputes relating to or arising out of employment between an employer and an employee; disputes between an employer and a trade union; disputes between an employers’ organization and a trade unions organization; disputes between trade unions; disputes between employer organizations; disputes between an employers’ organization and a trade union; disputes between a trade union and a member thereof; disputes between an employer’s organization or a federation and a member thereof; disputes concerning the registration and election of trade union officials and disputes relating to the registration and enforcement of collective agreements. Further Section 12(2) of the Act provides that an application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer’s organization, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose. 40.The Petitioners/ respondents submitted that the 2nd to 6th respondents misreported the holding in Attorney General & 2 Others vs Okiya Omtata Okoiti & 14 Others [2020] KECA 30 (KLR) where the central issue was whether the ELRC had jurisdiction to determine the constitutionality of the appointment of the chairperson and members of the National Land Commission. The Court of Appeal held that the ELRC had wrongly allocated itself jurisdiction over the matter stating that the High Court was the proper court to ventilate the dispute. Further the said case is distinguishable from the facts in the present petition in the sense that the dispute was chiefly about the appointment of NLC Commissioners and not about private civilians or minors complaining about their rights having been trumped upon. Similarly, the Supreme Court of Kenya in Republic vs Chengo & 2 Others [2017] KESC 15 (KLR) dealt with the constitutional question of whether a judicial officer specifically gazetted as a judge of either the Environment and Land Court or the ELRC could hear and determine a criminal appeal, to which the Supreme Court answered that a judge of the ELC could not properly heard and determine a criminal matter in the High Court at Malindi. 41.The respondents argued that the disciplinary mechanism against teachers under the TSC Act is between the involved teachers and the 2nd interested party and not a 3rd party victim to the said teacher’s transgressions. Further Regulations 144 and 145 of the Teachers Service Commission Code of Regulations for Teachers, 2015 uses the term “may” which signifies that the complaint mechanism therein is complimentary to any other available mechanism. Regulation 156 is an internal appellate mechanism within TSC for teachers in respect to disciplinary action, if any, meted against them. Thus, the said regulations are not applicable to the petitioners as they are not teachers but are victims of teachers’ misconduct. 42.Reliance was placed in Article 165(1) of the Constitution establishing the current court which is clothed with jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. Article 22(1) of the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Further Article 22(2)(a) of the Constitution states that in addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by a person acting on behalf of another person who cannot act in their own name. Article 23(3) of the Constitution provides that in any proceedings brought under Article 22, a court may grant appropriate relief including a declaration of rights; an injunction; a conservatory order; a declaration of invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24; an order for compensation and an order for judicial review. 43.The respondents argued that the instant petition was brought by minors through their parents as next of kins and it presents serious and weighty issues of breach of multiple human rights and fundamental freedoms by the 2nd to 6th applicants which include corporal punishment, denial of personal liberty, violation of privacy, sexual harassment, cruel, degrading and inhuman treatment, torture and so on. Further the respondents argued that the issues permeate beyond the employee employer relationship between the 1st respondent and the 2nd to 6th applicants or the issue of professional member regulatory authority between the 2nd to 6th applicants and the 2nd interested party. The disciplinary actions ordinarily taken by the 2nd interested party against the teachers pursuant to Section 33 and 34 of the TSC Act does not exhaust or cover some of the remedies available under Article 22 and 23(3) of the Constitution. Reliance was placed in the decision of DWK & Another vs Board of Management AJ Primary School & 2 Others [2021] KEHC 13584 (KLR) where the court rejected a similar argument that it did not have jurisdiction on account of a parallel complaint procedure at the national police service level. The respondents further argued that it only makes the 2nd to 6th applicants’ case worse to parade before the instant court the outcome of the alleged disciplinary process undertaken by the 2nd interested party against them. The outcome confirms that the minors did suffer immeasurable injustice at the hands of the 2nd to 6th applicants. Further, the Petitioners/respondents stated that neither them n or the minors were active parties or participants in the said disciplinary hearings at the 2nd interested party’s offices. Whilst some or all the applicants may have been disciplined by the 2nd interested party over their transgressions, the minors themselves are yet to be fully compensated. Reliance was placed in the case of Teachers Service Commission vs WJ & 5 others (Civil Appeal 309 of 2015) [2020] KECA 741 (KLR) (24 April 2020) (Judgment) where the Court of Appeal stated thus:-“as innocent victims, the minors are entitled to compensation for having been subjected to such humiliation, shame and pain that may have a lifelong effect on them. It is inconceivable how the minors in their tender years are made to carry that kind of burden of shame due to selfishness of a caregiver. Compensation and award of damages is an exercise of discretion by the trial Judge and can be interfered with if the Court of Appeal is convinced that the Judge acted upon some wrong principles of law, or that the amount awarded is extremely high or low. The appellant did not demonstrate that the award was too high. To us, these are minors who were traumatized and stigmatized perhaps for the rest of their lives. We are not persuaded the award of damages can be interfered with. 44.In the said case, the principal question that the High Court and later the appeal at the Court of Appeal was addressing was labour law related being the liability of state and state organs in the education sector when persons under their employment, and over whom they exercise powers of discipline and control violate the rights of children placed under their care. The suit was addressed and determined as a constitutional and human rights suit since the victim minors had alleged that they had suffered sexual violence, physical, emotional and psychological harm and trauma in the hands of the Deputy Head Teacher of J Primary School, which teacher was employed by the TSC. At the High Court level when the jurisdiction of the court to hear and determine the matter was challenged, the Court stated as follows:-The petitioners allege violation of their fundamental rights under the Constitution as well as under international instruments to which Kenya is a party. They allege, primarily, violation of their rights to health and education guaranteed under Article 43(1)(a) and (f) of the Constitution, but also violation of their right to dignity and non discrimination under Articles 27 and 28 as well as the protection from torture and other cruel and degrading treatment under Article 29. The interested parties support the petitioners’ case and hinge their averments and submissions on implementation of the constitutional provisions in Article 43 in light of the state’s obligation under international human rights instruments. It cannot therefore be seriously disputed that the present petition is properly before this Court. the court is properly clothed with jurisdiction to deal with issues raised and if satisfied that the petitioners have established their claim, grant appropriate relief. The relief sought by the petitioners also fall under the provisions of Article 23, which provides at sub article (3) that: In any proceedings brought under Article 22, a court may grant appropriate relief including (a) a declaration of rights; (b) an injunction (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review. It is therefore my finding, and I do hold that this court has the jurisdiction to determine the issues raised in this petition. 45.The respondents further asserted that both the High Court and the Court of Appeal held that the disciplinary mechanism under the TSC Act was insufficient to fully address and redress human rights violations and breaches of fundamental freedoms by teachers against students. the High Court on its part held:-However, the good intentions of the State and TSC are, in my view, limited in two respects. First, as this case demonstrates, there is insufficient enforcement of the circular and the Code of Ethics. If students and pupils are still compelled by teachers to go to their houses and perform domestic chores for them, as the petitioners were, and in the process, are subjected to sexual violence, then the state, the TSC and those in charge of institutions, such as school heads, are failing in their duty to protect children. In addition, the steps taken by the state and TSC are in many respects limited, and no doubt ineffectual. For instance, are students and pupils aware of the contents of the circular that prohibits school teachers from having any contact with them outside what is required of a normal teacher pupil relationship? Are they aware that there is a prohibition against teachers inviting students to their houses? How many institutions and parents have access to the TSC website on teachers who are deregistered for breach of the Code of Ethics and Regulations for teachers? Is the website still up and functioning today? Secondly, there is clearly a failure, as the petitioners submit in providing support and remedies for children who may be subjected to sexual violence by their teachers. While prosecution and dismissal of offenders is a step in the right direction, it does not deal with the psychological trauma and stigma that the victims of such violence experience. I did not hear the state or the TSC refer to any policy or process for ensuring counselling or other psychological support for victims of sexual violence. It appears that the state views its role as limited only to punishing offenders, not addressing the needs of the child victims of such offences. 46.The Court of Appeal while upholding the High Court’s verdict thus stated:-In this case the teacher who allegedly committed the acts was in charge of the school’s discipline and counselling and one wonders where the minors were to report. We therefore, agree with the learned Judge, that measures employed by the TSC and the State to provide a safe learning environment for children were insufficient and ineffective and this judgment should have been used to strengthen and operationalize the policies. 47.The respondents argued that constitutional petitions are not strictly adherent to Civil Procedure Rules but to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Further, reacting to the 2nd to 6th applicants argument of the petition being scandalous and vexatious based on what is contained in paragraph 13 of the statement of facts, the respondents submitted that the said paragraph only reproduces the facts of violations of rights and fundamental freedoms complained of and there is nothing the applicants have shown to demonstrate that the said statement of facts are scandalous and vexatious. 48.Furthermore, from their letter by the 2nd interested party on its findings and verdict against the 6th applicant, adopts and upholds substantially all the facts stated under paragraph 13 of the petition. The applicants have not shown that they have successfully appealed or reviewed the said findings thus their contention that the said facts are scandalous and vexatious while the very facts were used to interdict and suspend them is ironical and self defeating. The applicants only merely claim that the petition should be struck out but has neither relied on the Mutunga Rules or made any further steps to demonstrate or place any material before the court to show how or to what extent, if any, the suit is scandalous, vexatious or an abuse of the court process. 49.The respondents argued that the ground would still collapse even if they relied on Order 2 Rule 15(1) of the Civil Procedure Rules. The respondents relied on the decision in Transcend Media Group Limited vs Independent Electoral & Boundaries Commission [2015] eKLR where it was held:-50.A pleading is scandalous if it states (i) matters which are indecent; or (ii) matters that are offensive; or (iii) matters made for the mere purpose of abusing or prejudicing the opposite party; or (iv) matters that are immaterial or unnecessary which contain imputation on the opposite party; or (v) matters that charge the opposite party with bad faith or misconduct against him or anyone else; or (vi) matters that contain degrading charges; or (vii) matters that are necessary but otherwise accompanied by unnecessary detailsA matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put up a defence would be wasting Court’s time; or (v) when it is not capable of reasoned argument. See Dawkins vs. Prince Edward of Save Weimber (1976) 1 QBD 499; Chaffers vs. Golds Mid (1894) 1 QBD 186.Again a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. See Bullen & Leake and Jacobs Precedents of Pleading (12th Edn.) at 145.A matter is said to be vexatious when (i) it has no foundation; or (ii) it has no chance of succeeding; or (iii) the defence (pleading) is brought merely for purposes of annoyance; or (iv) it is brought so that the party’s pleading should have some fanciful advantage; or (v). Where it can really lead to no possible good. See Willis Vs. Earl Beauchamp (1886) 11 PD 59.A Pleading tends to prejudice, embarrass or delay fair trial when (i) it is evasive; or (ii) obscuring or concealing the real question in issue between the parties in the case. It is embarrassing if (i) It is ambiguous and unintelligible; or (ii) it raises immaterial matter thereby enlarging issues, creating more trouble, delay and expense; or (iii) it is a pleading the party is not entitled to make use of; or (iv) where the defendant does not say how much of the claim he admits and how much he denies. See Strokes Vs. Grant (1878) AC 345; Hardnbord vs. Monk (1876) 1 Ex. D. 367; Preston vs. Lamont (1876).A pleading which tends to embarrass or delay fair trial is described is a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations which will prejudice the fair trial of the action and lastly a pleading which is abuse of the process of the court really means in brief a pleading which is a misuse of the Court machinery or process. See Trust Bank Limited vs. Hemanshu Siryakat Amin & Company Limited & Another Nairobi HCCC No. 984 of 1999.A pleading is an abuse of the process where it is frivolous or vexatious or both. 51.The court further relied on the case of Dev Surinder Kumar Bij v Agility Logistics Limited Civil Suit No. 311 of 2013[2014] eKLR it was held, inter alia, that:For a pleading to be dismissed pursuant to the provisions of Order 2 rule 15(1), it should be made clear and obvious that the issues raised by the Plaintiff can neither be substantiated, nor disclose any reasonable or justifiable an action as against the Defendant. 52.The respondents asserted that the petition raises legitimate concerns and seeks enforcement of weighty constitutional human rights and fundamental freedoms which cannot be wished away and can only be determined at a full trial. Furthermore, the power to strike out pleadings is discretionary and often draconian in nature and there is need to ensure that the power is exercised sparingly and cautiously to avoid a miscarriage of justice. Reliance was placed on Yaya Towers Limited vs Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000 where the Court of Appeal observed:-A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial…It cannot be doubted that the court has inherent jurisdiction to dismiss that, which is an abuse of the process of the court. it is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved…No suit should be summarily dismissed unless it appears so hopeless that it is plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. 53.The respondents urged the court to sparingly exercise its discretion and find that the petition is well founded and raises factual and legal issues which should be allowed to proceed to full determination. Reliance was further placed in the case of Crescent Construction Co. Ltd vs Delphis Bank Limited Civil Appeal 146 of 2001 [2007] eKLR where the Court of Appeal held:-However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non starter. 54.The respondents reiterated that other then the general, opaque, vague and superfluous statement that the petition is scandalous, vexatious and an abuse of the court process, no more material has been placed before the court to show specifically or succinctly substantiate the allegation. Such vague statements cannot extinguish their rights under Article 48 and 50 of the Constitution. Reliance was placed in the Court of Appeal case of Grace Mwenda Munjuri vs Trustees of the Agricultural Society of Kenya [2017] eKLR that:-The overreaching imperative in the administration of justice that guides courts, right from the Constitution to statute law as well as the relevant Rules of Procedure that guide various types of litigation in our courts, have shifted and courts tend to disregard matters of technicalities especially where no prejudice is caused to the parties. The courts are nowadays focusing on facilitating a just, expeditious, proportionate and affordable resolution of substantive disputes without undue regard to technicalities. 55.The Court of Appeal further cited with authority its holding in Richard Ncharpi Leiyagu vs Independent Electoral and Boundaries Commission & 2 Others CA No. 18 of 2013, Nyeri that:-the right to a hearing has always been a well protected one in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day, and there would be proportionality. 56.The Petitioners/respondents argued that a verdict in a criminal investigation has no significance to a parallel proceeding in a civil court. Further, the applicants have not demonstrated that their complaints to Parklands Police Station have been dismissed or abandoned. The investigations by the NPS and any preferred prosecution by the Office of Director of Public Prosecutions are entirely independent and beyond the control of the petitioners. Reliance was placed in the case of W.J. & Anther vs Astarikoh Henry Amkoah (supra) the court held:-On the material before me, I am satisfied that the 1st respondent did indeed commit the acts that he was accused of. His employer, the TSC found him culpable of breaching the Code of Conduct and Ethics, and not only dismissed him from employment but struck him on the register of teachers. At the very least, even though the acts of defilement were not proved against him in the criminal trial where proof beyond reasonable doubt is required, on the balance of probability test. I find that the 1st respondent did defile the petitioners. It is indeed difficult not to conclude, from the evidence adduced by the petitioners, that at the very least, the 1st respondent, a deputy Head Teacher in charge of minors, committed acts amounting to sexual assault against the petitioners, or conducted himself inappropriately as a teacher in respect of his charges, so much so that his employer found it justifiable to not only dismiss him from employment but to deregister him as a teacher. I note that the 1st respondent has not challenged either his dismissal or his deregistration. 57.The respondents submitted that the applicants snuck another ground in their submissions on whether the petitioner violated the principle of exhaustion and whether they should have sued the TSC if at all. The ground is not raised substantively in the application itself but in the written submissions. It is trite law that submissions are not pleadings. To buttress that point, the respondents cited the case of Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 Others (2016) eKLR:-As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…. 58.Further reliance was placed in the case of Alfred Ogola Odul vs Joseph Onyango Yuaya [2022] eKLR where it was held:-in an adversarial system such as ours and subject to the relevant provisions of the law on the structure of particular pleadings, each party has the burden to chart his own case which binds him. The essence of this is to ensure certainty and finality so that each party knows well in advance the case that he has to meet and cannot be taken by surprise. It is trite law that courts are bound by pleadings presented before it by the parties and the court cannot enter the arena of litigation. As an independent arbiter, the court’s role is to adjudicate upon the specific matters in dispute which the parties themselves have raised in their pleadings and not otherwise. 59.The respondents further cited the case of Daniel Toroitich arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR where the Court of Appeal held:-Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties ‘marketing language’ each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. 60.Further reliance was placed in the case of ASSL vs ASMB [2020] eKLR where the court stated that it is trite law that new issues cannot be raised in submissions. Further in Republic vs Chairman Public Procurement Administrative Review Board & Another ex parte Zapkass Consulting and Training Limited & Another [2014] Korir J. (as he then was) stated: the applicant, the applicants and the interested party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored. 61.The court further stated in ASSL vs ASMB (supra) that submissions must be anchored on and supported by pleadings….similarly it is trite law that a party cannot be allowed to go beyond his pleadings nor can the court look beyond his pleadings. Further in Dickson Mwenda Kithinji vs Gatirau Peter Munya & 2 Others [2013] eKLR the court held: that in view of the foregoing I find and hold that the petitioner can only ask for scrutiny and recount in stations which he has specifically pleaded in the petition. He cannot be allowed to go beyond his pleadings nor can court look beyond his pleadings….as a party in any matter is bound by his pleadings. Additionally in Bwana Mohammed Bwana vs Silvano Buko Bonaya & 2 Others [2013] eKLR cited with authority the case of Obare Mochache Walter vs Samwel Apoko Onkwani & 2 Others (2018) eKLR and held that before analysis of the evidence, I wish to state that in the submissions, the petitioner introduced new issues and new stations which were not pleaded in the plaint. It is established law that parties must confine themselves to their pleadings. A court of law will be seen to deviate from disputed issues if it engages in matters that are not specifically pleaded in the plaint. The court is therefore not bound to render any opinion on any new issues raised in the submissions. 62.The court further stated: there is no doubt that the petition does not contain particulars of the polling stations where alleged irregularities and/or illegalities took place. This court rejects the appellant’s submission that the election court was obliged to inquire into matters that were not pleaded. The election court was not bound to render any opinion on any new issues raised in evidence and submissions by the appellant. Similarly this court rejects the invitation to frame new issues for determination not pleaded or respondend to by the parties, for to do so, this court will have abandoned its role as an independent and impartial adjudicator and descended into the arena of conflict. Analysis and Determination 63.This Application raises two fundamental issues for determination; the 1st issue has two limbs. The issues are:a.Whether this Honourable Court should assume jurisdiction to hear and determine this Petition given that it is founded on facts that have already been conclusively subjected to disciplinary proceedings and which Criminal investigation arising from the same set of facts is still pendingb.Whether the petition and statement of facts are scandalous, vexatious and an abuse of the court process. SUBDIVISION - Whether this Honourable Court should assume jurisdiction to hear and determine this Petition given that it is founded on facts that have already been conclusively subjected to disciplinary proceedings and which Criminal investigation arising from the same set of facts is still pending 64.Firstly, it is important to observe that the Applicants/Respondents challenge to this Honourable Court’s jurisdiction, while initially focused in their Application to the ouster of this Court’s jurisdiction by virtue of facts constituting the Petition falling within the exclusive jurisdiction of the Employment and Labour Relations Court under Article 162 (2) (a) of the Constitution, their written submissions, encompassed jurisdictional bar based on the doctrine of constitutional abstention and supported it with relevant authorities. This aspect being a pure question of law, in my view could properly be canvassed at the submission stage. In any event, the Petitioners/Respondents in their written submissions in reply fully addressed the issue. 65.At the outset, the Applicants/Respondents attempt to mischaracterize the Petition as an employment related matter is misconceived and must fail. The Petition concerns constitutional violations allegedly perpetrated by the Applicants/Respondents against the minors. The minors were not in an employee-employer relationship with the Applicants/Respondents and the dispute does not therefore constitute a labour matter within the meaning of Article 41 as read with Section 12 of the Employment and Labour Relations Act. The mischaracterization is thus unfounded, and untenable. The facts constituting the Petition do not fall within the specialized jurisdiction of the Employment and Labour Relations Court. 66.On the issue that this Court should decline jurisdiction based on the doctrine of abstention, the Applicants/Respondents relied on the judicial precedents of Jemmah v Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR). Through their Advocate on record they urged this Court to decline jurisdiction over the matter. At page 10 of their written submissions dated 28/8/2025 they argued as follows:“Indeed, while the Petition disclosed prior to filing of the Petition, the Petitioners had impressed the foregoing provision/regulation by reporting the Respondents, through their letter dated 4th July, 2023; to Respondents’ employer, that the Respondents had been involved in misconduct against the students, being the germane/crux of the Petition; they concealed from the Court and/or Petition, being material concealment, the fact that the employer, Teachers Service Commission, had consequent to the said complaint/reporting subjected the Respondents to the following disciplinary process:a.Carried out investigation on the subject matter between 5th and 8th September 2023 and consequently issued show cause letters dated 16th October, 2023 to the Respondents and further interdicted them vide letters dated 5th December, 2023.b.The Employer conducted the hearing of the complaint on the subject matter on 1st February, 2024 upon the Respondents were suspended for 3 months without pay with effect from 1st February, 2024 and the case was closed.” 67.In the Supplementary affidavit of the Applicants/Respondent sworn on 26th August, 2025; this fact as reiterated in paragraph 4 (a, b and c). 68.In paragraph 12 of the submissions, the Applicants/Respondents reiterate thus:“The Petition is mutatis mutandis the foregoing disciplinary proceedings by the employer TSC, against the employee, due to the fact that the Petition is premised on the following grounds, the basis of instant application…” 69.Regarding the existence of a criminal complaint, the Applicants/Respondents stated:“The fact that the foregoing allegations are of criminal nature having been reported as assault to Parklands Police Station under occurrence Book (O.B) No. 44 on 23rd June, 2023 and obtaining a medical examination report (P3 form), and failure of any charges against the Respondent is a testament that the allegations are baseless....” 70.The existence of the criminal complaint is also alluded to in the supporting affidavit VICTOR MAIRURA sworn on 10th May, 2025 at paragraph 4-ix as follows:““The minor developed complications inter alia at Kenyatta National Hospital, having earlier reported the assault to Parklands Police Station under Occurrence Book (O.B) No. 44 of 23rd June, 2023 and obtaining a Medical Examination Report (P3 form).” 71.The Respondents/Petitioners did not dispute the fact this Petition was primarily based on the same facts as the disciplinary process that the Respondents were subjected to by their employer. Instead, the Respondents/Petitioners argued the disciplinary proceedings that are ordinarily undertaken by the 2nd interested party against the teachers (Respondents in this case) pursuant to Section 33 and 34 of the TSC Act do not exhaust or cover all the remedies available under Article 22 and 23(3) of the Constitution and in support of this submission relied on the case of DWK & Another vs Board of Management AJ Primary School & 2 Others [2021] KEHC 13584 (KLR) 72.Further, respondents/petitioners argued that the instant petition was brought by minors through their parents as next of kins and that it presents serious and weighty issues of breach of multiple human rights and fundamental freedoms by the 2nd to 6th applicants/respondents which include corporal punishment, denial of personal liberty, violation of privacy, sexual harassment, cruel, degrading and inhuman treatment, torture and so on. The Respondents/Petitioners thus argued that issues herein permeate the employee-employer relationship between the 1st respondent and the 2nd to 6th applicants or the issue of professional member regulatory authority between the 2nd to 6th Respondents. 73.Further, Counsel for the Respondent/Petitioners submitted as follows in regard to the pending criminal complaint at Parklands Police Station:“…It has not been demonstrated by the Applicants that the said Petitioners’ complaint to Parklands Police Station has been dismissed or abandoned. The investigations by the NPS and any preferred prosecution by the Office of Director of Public Prosecutions (herein “the ODPP”) are entirely independent and beyond the control of the Petitioners. If anything, the NPS and the ODPP determine their own modus operandi and are not under the control of civilian Kenyans…” 74.It is thus not in dispute from the foregoing review that the instant Petition is founded on the same or identical facts as those in concluded disciplinary proceedings that were undertaken by the Applicants’/Respondents employer (Teachers Service Commission) against the Respondents who are teachers in respect of alleged conduct. It is also not in dispute that for the same conduct, a criminal complaint was lodged with the police at the Parklands Police Station on 23/6/2023 and the outcome of the investigations was not yet known as at the time this Petition was instituted on 4/8/2023 or at all. 75.Further, at the time of filing the Petition, the disciplinary process was either imminent or ongoing, though it is now apparent that it was subsequently concluded during the pendency of this petition and sanctions imposed on the Applicants/Respondents. On this issue, Counsel for the Petitioners posited:“…Secondly, it has been alleged in Paragraph 10 of the Applicants’ Submissions that the Petition concealed material facts from this Honourable Court to the effect that the Applicants had been subjected to a disciplinary process before the 2nd Interested Party and various consequential disciplinary decisions had been taken by the 2nd Interested Party against the 2nd to 6th Interested Parties. With tremendous deference, this is an intelligible argument! The reason is that while the Petition herein was filed on 4 th August, 2023 the disciplinary processes happened in late 2023 and early, 2024 as seen from the Applicants annexure “VM-1” in the Supplementary Affidavit as well as their own depositions under Paragraph 10 of the Supplementary Affidavit. Therefore, at the time of presentation of the Petition, the disciplinary actions/processes alleged had not taken place and could not be communicated to the Court…” 76.This Petition thus presents a unique question, where the Respondents/Applicants assert that the substratum of this Petition is based on the exact same facts upon which they have been taken through disciplinary proceedings and sanctions imposed on them for the impugned conduct by the employer. At the same time, they argue that exact same facts are the subject of an impending criminal investigation following a complaint that was lodged against them on 23/6/2023 at Parklands Police Station. The outcome of the investigation unknown to them at the time of filing the Petition and arguing this Application. 77.The central question that this Court would like to pose is this: is it fair and just to subject the Applicants/Respondents to parallel and simultaneous multiple legal proceedings; namely, disciplinary, criminal and constitutional-arising from the identical set of facts? 78.In my considered view, while criminal and disciplinary process are considered independent proceedings from Constitutional Petitions brought under Article 22 of the Constitution to protect fundamental rights and freedoms, the Court must exercise caution in dealing with circumstances where the facts raised in the Petition, the disciplinary proceedings and in the criminal investigation substantially overlap to avoid a situation where the parallel processes undermine the right to a fair trial or the sanctity of a criminal investigative process. 79.Reacting to the issue of the pending criminal complaint which was raised by Applicants’ Advocate, the Petitioner’s Advocate stated:“…It has not been demonstrated by the Applicants that the said Petitioners’ complaint to Parklands Police Station has been dismissed or abandoned. The investigations by the NPS and any preferred prosecution by the Office of Director of Public Prosecutions (herein “the ODPP”) are entirely independent and beyond the control of the Petitioners. If anything, the NPS and the ODPP determine their own modus operandi and are not under the control of civilian Kenyans…” 80.The question would thus be, given the fact that the lodging of the criminal complaint is not denied, and the fact that the investigation is or was incomplete, is it proper to proceed with the Petition without risking prejudicing the sanctity of the investigative process or rights of the 2nd to 6th Respondents who might be compelled to volunteer information in their defence against their guaranteed constitutional right to remain silent? Further assuming the Petition is heard and concluded before the investigation is completed or the conclusion of the potential criminal proceedings, what would be the impact of say, these Court’s findings on such an investigation or the potential criminal case? 81.In my considered view, given that the core of this Petition are facts that implicate commission of criminal offence (s) against the Petitioners for which an investigation is pending and also, professional misconduct of which disciplinary process was initiated and sanctions imposed, the best course to adopt for now is allow the criminal processes to also conclude. My considered view is that proceeding with the Petition may jeopardize their positions in the pending criminal investigation in breach of Article 50 on the presumption of innocence or the right to remain silent. Although Section 193 of the Criminal Procedure Code allows the continuation of both criminal and civil proceedings based on the same facts, where there is a risk that such proceedings risks occasioning a miscarriage of justice this Court has an inherent duty to intervene. 82.As was held by in the Indian case of State of Karnataka v. L. Muniswamy (1977) 2 SCC 69“…In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution… the ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature…” 83.The National Police Service is established under Article 243 of the Constitution. The Constitution further mandates Parliament in Article 245 (8) with the power to enact legislation to give full effect to this Constitutional provision. Accordingly, Parliament enacted the National Police Service Act No. 11 A of 2011 which under section 24 (e) empowers the Police to investigate crimes. 84.It is not in dispute that on 23rd June, 2023 a report was made by the Petitioners at Parklands Police Station arising from facts the subject matter of this Petition. The Petitioners have not bothered to inform this Court, despite the matter being under investigation as a result of their complaint what became of that process. What emerges is that they almost at the same time came to this Court and filed this Petition. The Petitioner has not demonstrated any failure by the police to investigate the matter or allege bad faith on their part. It appears the Petitioners objective is to bombard the Respondents on multiple legal fronts simultaneously, all based on the same underlying facts. 85.The Petitioners initiated the disciplinary complaint against the respondent, the police complaint and while the disciplinary complaint was underway together with the investigation into the criminal complaint, filed this Constitutional Petition. 86.The Constitution and the National Police Service Act confer the specific mandate of investigating any complaint that implicates the commission of crime on the police and it is the considered view of this Court this function ought to be discharged first before the Petitioner directly seeks to invoke the constitutional jurisdiction of this Court over the matter. Unlike the case DWK & Another vs Board of Management AJ Primary School & 2 Others [2021] KEHC 13584 (KLR) where the police complaint was withdrawn by the 1st Petitioner, in the instant matter the police complaint remains intact, unwithdrawn hence the distinction. 87.I would have evaluated the effect of the concluded disciplinary case on the Petition as it raises substantially similar issues as those addressed herein. Further, the interplay between disciplinary and criminal proceedings as enunciated by the Supreme Court in the Judgement of Nyagol v Judicial Service Commission & Anor E105 OF 2024 EKLR. However, I defer such determination until the criminal investigation process is concluded. The conclusion of criminal investigation will enable a comprehensive assessment of the cumulative impact of all these multiple legal proceedings on the Applicants/Respondents. 88.Consequently, in deference to the investigative power of the police, and the need to protect the sanctity of the investigative process, this Court declines to assume the jurisdiction to hear the Petition under the doctrine of abstention to allow any pending criminal investigations to be completed first. 89.The Court finds that the Petition was instituted prematurely before allowing an active investigative process to be completed. I am fortified by the decision of William Kabogo Gitau v Ferdinand Ndung’u Waititu [2016] eKLR where the Court held:“In my view, while this Court enjoys unlimited original jurisdiction in criminal and civil matters by dint of Article 165 (3) (a) of the Constitution, that is not a substitute for other first ports of call in determining such civil and criminal matters. In the present case, the Petitioner alleges the commission of various criminal offences and thus concludes that the Respondent is guilty of the same and hence in violation of Articles 10 (2) and 73 of the Constitution. 49.I hold the view that the Petitioner’s contentions in regard to the commission of the alleged offences must be raised with the relevant authorities and this Court cannot at this juncture usurp the powers of such authorities…” 90.Further the case of Law Society of Kenya v Attorney General & Another; National Commission for Human Rights & Another (Interested Parties) (2020) eKLR held as follows:“…Where the Constitution has reposed specific functions in an institution or organ of the State, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution…” 91.Accordingly, this Honourable Court declines jurisdiction over this matter. Determining the Petition risks undermining the pending criminal investigative process. Having declined jurisdiction, there is no need to determine the second issue. The Petition offends the doctrine of constitutional abstention; it is the police that have the primary responsibility over the facts as the matter is still subject to the process of criminal investigation. 92.The Petition is premature and unsustainable. I hereby strike out the same in its entirety with no orders as costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF JUNE, 2026.………………………………………….L N MUGAMBIJUDGE