https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1946

Mwenda v Safaricom PLC (Cause E1072 of 2025) [2026] KEELRC 1946 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1946 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E1072 of 2025 CN Baari, J July 9, 2026 Between Ann Kanana Mwenda Claimant and Safaricom Plc Respondent Ruling 1.This ruling relates to the Respondent’s Notice of Preliminary Objection dated 4th February, 2026, seeking the striking out of the Claimant’s Claim on the ground that the Court lacks the pecuniary jurisdiction to hear and determine the same in view of the express provisions of Legal Notice No. 6024 of 2018 dated 22nd June, 2018. 2.Parties urged the Objection by way of written submissions, and submissions were received from both parties, including supplementary submissions from the Respondent. The Respondent’s Submissions 3.The Respondent submits that the Employment and Labour Relations Court lacks pecuniary jurisdiction to hear the claim herein on the basis that the Claimant’s gross monthly salary at the time of termination was Kshs.69,943, which is below Kshs.80,000. It contends that claims involving employees earning below this threshold fall within the jurisdiction of a Magistrate’s Court handling employment and labour disputes under Legal Notice No. 6024 of 2018. 4.The Respondent submits that its Preliminary Objection is properly founded on a pure point of law as defined in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696. It argues that, pursuant to Gazette Notice No. 6024 of 10th June 2018, the Chief Justice designated Senior Resident Magistrates and above as Special Magistrates to determine employment disputes (excluding trade disputes) where an employee’s gross monthly salary does not exceed Kshs.80,000. The Respondent contends that since the Claimant earned Kshs.69,943, the jurisdiction lies with the Magistrate’s Court. 5.The Respondent further relies on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [198 9] KLR, to emphasize that jurisdiction is a threshold issue which must be determined at the earliest opportunity because a court lacking jurisdiction cannot proceed with the matter. 6.The Respondent further relies on the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, to argue that a court’s jurisdiction is derived solely from the Constitution and statute and cannot be assumed or expanded through judicial interpretation. It submits that jurisdiction is a fundamental issue that goes to the root of the proceedings, and where the law prescribes the limits of a court’s jurisdiction, the court must operate strictly within those limits. Accordingly, the Respondent maintains that this Court lacks jurisdiction to hear the present claim and should decline to entertain it. 7.The Respondent argues that the law expressly grants Magistrates' Courts jurisdiction over employment disputes involving employees earning Kshs.80,000 or less per month, subject to the statutory pecuniary limits, and since the Claimant earned Kshs.69,943.70, the dispute ought to have been filed before the Magistrate’s Court. 8.Consequently, the Respondent maintains that this Court lacks jurisdiction, consistent with the principle that courts can only exercise jurisdiction conferred by the Constitution or statute. 9.The Respondent submits that, under Section 11 of the Civil Procedure Act, suits should be filed in the lowest court competent to determine them. Relying on Amos Kung'u Wabaru v Royal Mabati Factory Limited, [2024] KEELRC 3070 KLR, it argues that employment disputes falling within the jurisdiction of the Magistrate’s Court should be heard there in the first instance to promote judicial efficiency and respect the hierarchy of courts. 10.Accordingly, the Respondent maintains that, since the Claimant earned Kshs.69,943.70, this Court lacks jurisdiction, and the suit should be struck out for want of jurisdiction. 11.In response to the Claimant’s argument that the claim exceeds Kshs.80,000 because it includes Kshs.129.5 million in constitutional damages, the Respondent submits that the suit is, in substance, an ordinary employment claim challenging unfair and unlawful dismissal under the Employment Act, and therefore falls within the Claims Division of the Employment and Labour Relations Court, making the salary threshold applicable. 12.The Respondent further argues that if the Claimant intended to pursue remedies for alleged violations of constitutional rights, she ought to have filed a constitutional petition under Rule 4(b) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which falls within the jurisdiction of the Court’s Judicial Review Division, not the Claims Division. 13.The Respondent finally maintains that this Court lacks jurisdiction and urges that the suit be struck out. The Claimant’s Submissions 14.The Claimant opposed the Preliminary Objection, arguing that the principal relief sought is general, exemplary, and aggravated damages of Kshs.129,500,000 for violations of her constitutional rights, including physical and psychological harm, torture, cruel and degrading treatment, and infringement of her right to dignity. 15.She contends that the value of the claim far exceeds the pecuniary jurisdiction of the Magistrates’ Court and therefore falls outside the scope of Gazette Notice No. 6024 of 2018. 16.The Claimant further submits that the objection is not a proper preliminary objection because the quantum of damages can only be determined after the Court hears evidence. The Claimant further argues that Gazette Notice No. 6024 merely designates certain magistrates to hear employment disputes and cannot oust the Employment and Labour Relations Court’s constitutional jurisdiction under Article 162(2)(a) of the Constitution. 17.The Claimant maintains that if the Court were to find that the matter falls within the Magistrates’ Court’s jurisdiction, the proper course would be to transfer the suit rather than strike it out. 18.She therefore urges the Court to dismiss the Preliminary Objection with costs. Analysis and Determination 19.The sole issue for determination is whether this Court has the jurisdiction to hear and determine the Claimant’s Claim by reason of Gazette Notice No. 6024 of 22nd June 2018. 20.There is no dispute that the issue of jurisdiction is a threshold issue that may properly be raised by way of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, the Court held that a preliminary objection must raise a pure point of law capable of disposing of the suit without the necessity of ascertaining the disputed facts. Equally, in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR, the Court of Appeal underscored that jurisdiction is everything and that once a court determines that it lacks jurisdiction, it must down its tools. 21.The Respondent's objection is founded upon Section 29(3) and (4) of the Employment and Labour Relations Court Act, Section 9 of the Magistrates' Courts Act, and Gazette Notice No. 6024 of 22nd June 2018, through which the Hon. Chief Justice designated magistrates of the rank of Senior Resident Magistrate and above to hear employment disputes where an employee's gross monthly salary does not exceed Kshs.80,000. 22.The Respondent’s argument is that because the Claimant earned Kshs.69,943.70 per month, the dispute falls exclusively within the jurisdiction of the Magistrates' Court. 23.The Employment and Labour Relations Court derives its jurisdiction from Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. Further, while there is no doubt that Section 29 of the Employment and Labour Relations Court Act, read with Gazette Notice No.6024, delegates jurisdiction on employment matters upon designated Magistrates' Courts, that jurisdiction is concurrent within the prescribed pecuniary limits and does not divest this Court of its original jurisdiction. 24.The Gazette Notice is, so to speak, an instrument enlarging access to justice through subordinate courts and not one that ousts the jurisdiction constitutionally vested in this Court. 25.This position was affirmed in Law Society of Kenya v Attorney General & Another [2018] KESC 2 (KLR), where the court upheld the constitutionality of conferring employment jurisdiction upon designated magistrates while recognizing that such conferment did not diminish the constitutional jurisdiction of the Employment and Labour Relations Court. 26.Further, and as correctly submitted by the Claimant, the Respondent's objection also proceeds on the assumption that the applicable pecuniary threshold is determined solely by the employee's monthly salary. While the Gazette Notice employs salary as one criterion for designating matters triable by magistrates, the Claim before Court is not confined to the statutory remedies ordinarily available under the Employment Act. 27.Under the Statement of Claim before court, the Claimant seeks, inter alia, constitutional damages, exemplary damages and aggravated damages amounting to Kshs.129,500,000 arising from alleged violations of constitutional rights allegedly committed in the course of the employment relationship. 28.The Court also notes that even assuming that the matter ought properly to have been instituted before a designated Magistrate's Court, the prevailing jurisprudence favours transfer, over striking out, in order to facilitate substantive justice and avoid unnecessary multiplicity of proceedings. 29.In my view, the pleadings herein disclose claims that extend beyond an ordinary claim for unfair termination and include allegations of constitutional violations and substantial claims for damages. Whether those claims are ultimately maintainable is a matter to be determined upon hearing, and cannot be summarily disregarded at this preliminary stage. 30.In the final analysis, I reach the conclusion that the Respondent has failed to demonstrate that this Court is divested of jurisdiction to entertain the suit herein. 31.The Respondent's Notice of Preliminary Objection dated 4th February 2026 is therefore without merit and is hereby dismissed. 32.The costs of the Preliminary Objection shall be in the cause. 33.It is so ordered.Bottom of Form SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 9TH DAY OF JULY, 2026.C. N. BAARIJUDGEAppearance:Mr. Kanchory present for the ClaimantMr. Ole Ntome present for the RespondentMs. Esther S- C/A