Mutua v Lomas & Lomas Ltd

3. On the rst issue, the Respondent submitted that the preliminary objection raised meets the test of a pure point of law as settled inMukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, as cited in many cases, including Synresins Limited v Pravin Vora t/a Vora Construction [2022] KEHC 13704 (KLR) that a preliminary objection raises a pure point of law argued on the assumption that the opposing party's pleaded facts are correct, and cannot be raised where any fact requires ascertainment or where judicial discretion is invoked. 4. It was submitted that the Respondent does not ask the Court to ascertain new facts, since it relies squarely on the Claimant's own admitted pleading of a monthly gross salary of Kshs. 62,326.37. The only question arising being the legal one of whether, in light of the Gazette Notice, the Court can entertain a claim from a litigant within that salary bracket in the rst instance. 5. On jurisdiction, the Respondent submitted that jurisdiction is foundational and that its absence is fatal to any proceeding, relying on the celebrated decision of Nyarangi JA in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), that " Jurisdiction is everything………………A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 6. It was further submitted, relying on the Supreme Court's holding in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, that a court's jurisdiction ows from the Constitution or legislation and cannot be expanded through judicial innovation. Thus, for this Court to entertain the suit would amount to impermissible judicial innovation contrary to the Gazette Notice. 7. The Respondent traced the statutory basis for the pecuniary jurisdiction out to Article 162(2)(a) of the Constitution and Section 29(3) of the Employment and Labour Relations Court Act, under which the Chief Justice is empowered to designate magistrates to hear employment and labour relations disputes; and submitted that Gazette Notice No. 6024 of 2018 accordingly designated Magistrates of the rank of Senior Principal Magistrate and above to hear such disputes where the litigant's monthly gross salary does not exceed Kshs. 80,000. 8. It was submitted that this constitutes a mandatory jurisdictional carve-out rather than a basis for concurrent jurisdiction. It argued that permitting claimants earning below the threshold to choose between the Magistrate's Court and the ELRC would defeat the purpose of decentralization, subject litigants to needlessly higher costs, and undermine the judicial hierarchy requiring matters to be heard rst at the lowest competent level. 9. Applying this to the facts, the Respondent submitted that the Claimant's own pleadings and payslip conrm a gross salary approximately twenty-two percent below the Kshs. 80,000 threshold. 10. Therefore, by ling in this Court she bypassed the Chief Magistrate's Court, the proper court of rst instance, and any judgment rendered by this Court at this stage would be nullity ab initio for judicial overreach. 11. On the orders sought, the Respondent moved the Court to strike out the suit in limine, submitting that the Claimant, being represented by Counsel, knew or ought to have known the applicable law, as the law does not aid a litigant who circumvents established procedure. 12. To support this position, it cited Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR, where a suit led in the wrong forum was struck out to allow the correct procedure to be followed. It further relied on the Court of Appeal's decision in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, for the proposition that a suit led in a court lacking jurisdiction https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2450/eng@2026-09-16 2

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is a nullity incapable of transfer, such that the present suit should likewise be struck out rather than transferred. 13. On costs, the Respondent submitted that it has been compelled to defend, at higher cost, a claim properly belonging in the subordinate courts, and relied on Supermarine Handling Services Ltd V Kenya Revenue Authority [2010] eKLR for the principle that costs follow the event unless good reason is shown otherwise, submitting that a party who successfully impugns jurisdiction is entitled to costs. 14. It is the Respondent’s submission that the Claimant's pleaded salary ousts the jurisdiction of this Court and vests it instead in the Magistrate's Court, that this Court cannot assume jurisdiction where the law has expressly diverted it elsewhere, and accordingly prayed that the Preliminary Objection be upheld, the suit struck out, and costs awarded to the Respondent. Claimant’s Submissions 15. It is the Claimant's submission that the Respondent's Notice of Preliminary Objection is premised solely on the ground that her gross monthly salary of Kshs. 62,326.37 falls below the Kshs. 80,000 threshold set out in Gazette Notice No. 6024 of 10th June 2018, is misconceived and ought to be dismissed in limine. 16. The Claimant submitted that this Court's jurisdiction is grounded in Articles 162(2)(a) and (b), 21, 22, 23 and 258 of the Constitution, Section 12 of the Employment and Labour Relations Court Act, 2011, and Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which permits enforcement of constitutional rights within a statement of claim. 17. It was argued that the Gazette Notice is subsidiary legislation made under the Magistrates' Courts Act for the purpose of allocating workload between courts of diering grades, and cannot, by dint of Article 2(1) and (4) of the Constitution, oust the jurisdiction of a constitutional court such as this one. 18. Counsel for the Claimant contended that the Memorandum of Claim raises not only a statutory claim for unfair termination under the Employment Act but also distinct constitutional causes of action founded on alleged violations of Articles 27, 28, 31, 41, 47 and 50 of the Constitution. Therefore, the dispute transcends an ordinary employment claim governed by the salary threshold in Gazette Notice No. 6024 and instead constitutes a multifaceted claim involving enforcement of constitutional rights. 19. In support of that position, the Claimant relied on the Supreme Court decision in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), wherein the Court held that the existence of an alternative statutory forum does not divest a constitutional court of jurisdiction where violations of the Bill of Rights are pleaded. The Claimant particularly relied on: “Neither the NET, EPRA nor EPT had the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations should not be impeded or stied.” 20. It was argued that, by parity of reasoning, Gazette Notice No. 6024 cannot operate to deprive this Court of jurisdiction over constitutional claims merely because the employment dispute falls below the prescribed pecuniary threshold. 21. The Claimant further contended that the Respondent's attempt to distinguish the Nicholus (Supra) case on the basis that it concerned tribunals rather than subordinate courts was immaterial since the Supreme Court's reasoning was founded on the inability of forums lacking constitutional jurisdiction to determine alleged violations of fundamental rights. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2450/eng@2026-09-16 3

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22. She submitted that Magistrates' Courts are subordinate courts established under Article 169 of the Constitution and are not courts of equal status to the High Court under Article 162(2). Consequently, they lack original constitutional jurisdiction under Articles 22, 162(2)(a) and 165(3)(b) to determine the constitutional violations pleaded or grant the constitutional remedies sought. 23. She further argued that the Court accepting the Respondent's position would create an arbitrary distinction whereby litigants earning below the prescribed salary threshold would eectively lose access to constitutional enforcement, an outcome inconsistent with the Constitution. 24. It was further submitted that the claim is a classic multifaceted claim comprising both statutory and constitutional causes of action arising from the same factual matrix. The Claimant argued that, pursuant to Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules and the guidance in Nicholus (Supra), this Court ought to determine all issues arising from the dispute instead of fragmenting the proceedings. Reliance was placed on the Supreme Court's observation that: “It is upon a party to frame its pleadings as it deems t... a court... must... in a multifaceted claim, address each issue within its jurisdiction.” 25. It is the Claimant’s submission that requiring separate proceedings before dierent forums is impractical, inecient and contrary to the interests of justice. 26. On the Respondent's reliance on Wasame v Perimeter Protection Limited [2025] KEELRC 486 (KLR), the Claimant argued that this is misplaced because, unlike the said case where no genuine constitutional violations had been pleaded, the present claim contains independent allegations of public humiliation, invasion of privacy through an unlawful search of the Claimant's mobile phone, and dissemination of private information. 27. It was submitted that these constitute distinct constitutional wrongs capable of standing independently of the employment relationship and therefore the substratum of the suit extends beyond an ordinary unfair termination claim. 28. The Claimant also challenged the Respondent's alternative prayer for transfer of the suit to the Magistrates' Court. It was submitted that such a prayer is inconsistent with the nature of a preliminary objection as explained in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, since a proper preliminary objection must dispose of the suit on a pure point of law without inviting the exercise of judicial discretion. The request for transfer, it was argued, necessarily invokes the Court’s discretion and therefore falls outside the scope of a true preliminary objection. 29. The Claimant further submitted that although Parliament enacted Section 8 of the Magistrates' Courts Act pursuant to Article 23(2) of the Constitution and the Chief Justice subsequently issued Gazette Notice No. 3969 of 2020 delegating limited constitutional jurisdiction to magistrates, that jurisdiction remains restricted. It was argued that Magistrates' Courts cannot issue declarations of unconstitutionality, award constitutional damages under Article 23(3), or grant certain constitutional remedies sought in the present proceedings. 30. It is the Claimant’s submission that transferring the matter would render the constitutional grievances non-justiciable and infringe the Claimant's rights under Articles 22, 48 and 50(1) of the Constitution. 31. The Claimant further submitted that the decision in Nicholus is binding on this Court by virtue of Article 163(7) of the Constitution. She cited Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR) where the Supreme Court armed that Article 163(7) constitutionalizes the doctrine of stare decisis and that decisions of the Supreme Court bind all other courts. The Claimant particularly relied on the Supreme Court's holding that: “The principle of Article 163(7) of the Constitution serves as https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2450/eng@2026-09-16 4

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a form of hierarchical control in respect to constitutional interpretation and the same is indefeasible and absolute.” 32. The Claimant therefore argued that this Court is constitutionally bound to apply the principles laid down in Nicholus when determining the jurisdictional question. 33. Regarding the nature of the preliminary objection, the Claimant submitted that it fails the threshold established in Mukisa Biscuit and rearmed in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR. She argued that the objection is not founded on a pure point of law because it depends on the Claimant's pleaded facts, would not dispose of the entire suit given the surviving constitutional claims, and, by raising it, the Respondent is deemed to have admitted the pleaded facts solely for purposes of the objection. 34. The Claimant submitted that once the preliminary objection fails, the Court should treat the Respondent's procedural admission of the pleaded facts as sucient to enter judgment on liability and proceed only to the assessment of damages. 35. It was argued that requiring a full trial after the Respondent had admitted the pleaded facts for purposes of the objection would undermine Article 159(2) of the Constitution and occasion unnecessary delay and expense. 36. The Claimant placed reliance on Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) and Raila Odinga & Others v IEBC [2017] eKLR for the proposition that parties are bound by their pleadings and cannot subsequently depart from positions taken before the Court. 37. I have examined all the averments and submissions of the parties herein. The claimant has not denied earning kshs 62,326.37/- as averred by the respondent applicant. It is therefore true that the claimant’s salary being less than kshs 80,000/- and with gazette notice no 6024 of 22nd June 2018 conferring jurisdiction to Magistrates for employees earning less than kshs 80,000/-, it is apparent that this cause was led in the wrong court and cannot proceed as such. 38. I nd the preliminary objection has merit and I allow it and order transfer of this cause to the Chief Magistrate’s Court (ELRC division) for hearing and disposal. Costs to the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2450/eng@2026-09-16 5

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