Eunice Nyambura Githinji v The Riara Group of Schools

invasion of privacy, unpaid allowances and certificate of service. 2. She further filed a Notice of Motion dated 16 th April 2026 seeking the following orders: a) That the application be certified as urgent and heard ex-parte in the first instance and service on the Respondent be dispensed with. b) Pending the hearing and determination of this application and/or the main suit, the Respondent be compelled to allow the Claimant's minor children to continue with their education at the Respondent's institution without disruption as her salary was used to pay part of the school fees. c) The Respondent be restrained from taking any adverse action against including denial of the access Claimant's children, to facilities, school participation in academic programs, or exclusion from examinations pending final determination of the claim. CAUSE RULING NO. E398 OF 2026 PAGE 2

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d) The interim orders remain in force until such time as the Claimant/Applicant makes alternative arrangements to transfer the children to another institution. e) That costs of this application be provided for. 3. The motion is supported by the Affidavit sworn by claimant on 16th April 2026 and is opposed by the respondent through a Notice of Preliminary Objection dated 24th April 2026 and a Replying Affidavit sworn on 27th April 2026 by the respondent’s Group Human Resource Manager one Virginia Muhia. 1. The Notice of Preliminary Objection dated 24 th April 2026 urges the Court to dismiss the claimant’s Motion on the following grounds: a) That, to the extent that the Claimant/Applicant's Application seeks orders relating to the education, admission, and continued schooling of minors and/or children, this Honourable Court lacks jurisdiction to hear, entertain and determine the same. CAUSE RULING NO. E398 OF 2026 PAGE 3

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b) That the issues raised in the Claimant/Applicant's Application fall outside the scope and jurisdiction of this Honourable Court as specifically provided for under Article 162(2) of the Constitution of Kenya, 2010 as read together with Section 12 of the Employment and Labour Relations Court Act, Cap 8E of the Laws of Kenya. c) That in the premises, the orders sought in the Claimant/Applicant's Application are incapable of being granted and/or issued by this Honourable Court. d) That arising from Claimant/Applicant's the foregoing, Application is the incompetent, misconceived and legally untenable. 2. The claimant’s motion and the respondent’s objection were simultaneously disposed of by written submissions. The Claimant’s submissions are dated 12 th May 2026 and the Respondent’s submissions are dated 8th July 2026. Arguments CAUSE RULING NO. E398 OF 2026 PAGE 4

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3. The Claimant’s case is that her minor children, aged 11 and 6 years, were enrolled at the Respondent's institution by virtue of her employment and enjoyed the non-cash benefit of school fees that was taxed as part of her salary. She attached a copy of her payslip marked "ENG2" showing subsidized education fees as part of her employment package. 4. Her employment was terminated in March 2026 and her children barred from attending the respondent’s school. The eldest child is due to sit for the JPKUSEA Grade Six national examinations in October 2026, and his education has been disrupted by the Respondent's actions. 5. At the time of the termination, she was earning a monthly salary of Kshs. 128,000/- and she was the only bread winner for the family after her husband abandoned the family. She averred that unless the court intervenes by granting the orders sought, her children's education and welfare will suffer irreparable harm. 6. She urged the court to grant interim orders compelling the Respondent to allow her minor children to continue with CAUSE RULING NO. E398 OF 2026 PAGE 5

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their education at the Respondent's institution without disruption pending the hearing and determination of the application and/or the main suit. 7. As regards the respondent’s preliminary objection, the Claimant contended that the same is misconceived, legally untenable and an abuse of the court process as it does not raise a pure point of law but contested factual issues, including the nature of her employment benefits, the terms of her employment and whether the benefit in dispute arises from the employment relationship. She averred that the determination of the above issues requires evidence and a full hearing, and cannot properly be determined at a preliminary stage. 8. The Claimant argued that her payslip on record expressly shows a benefit described as "School Fees" in the sum of Kshs. 60,775.00, which forms part of her employment package. She further argued that the inclusion of "School Fees" in her payslip confirms that the benefit arises directly from her employment relationship as a staff/employment benefit administered through payroll. CAUSE RULING NO. E398 OF 2026 PAGE 6

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She contended that the said benefit is not an independent or standalone education dispute as alleged by the Respondent and therefore, this court has jurisdiction to determine the suit by dint of Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, which confer jurisdiction to this court to hear disputes relating to employment and labour relations. 9. The Claimant reiterated that the termination of her employment affected the education of her minor children who are to sit for the final exams in October 2026 and such a sudden change of school will adversely affect them. She contended that since the issue of termination is contested, the status quo should be maintained until the court finds an adverse position. She argued that, her plea is for more time to cater for relocation to a school near her precincts and if any school fees are owing, the same be factored as a debt payable upon successful completion of the case. CAUSE RULING NO. E398 OF 2026 PAGE 7

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10. The respondent’s case is that this Honourable Court lacks jurisdiction to hear and determine the Claimant's Application and/or Claim in so far as it seeks orders relating to the continued admission and schooling of the Claimant's children after the termination of her employment. It averred that the dispute, as framed, does not arise from or relate to an employment relationship within the meaning of Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. 11. It maintained that, the Claimant's employment having lawfully terminated, the staff school fees benefit similarly ceased, and any subsequent relationship concerning the children's continued schooling constitutes a separate and independent contractual arrangement between the school and the parent. Therefore, it argued that the Claimant has improperly invoked the jurisdiction of this Honourable Court to enforce what is, in substance, a claim relating to admission into a private educational institution and payment of school fees, which fall outside the specialized CAUSE RULING NO. E398 OF 2026 PAGE 8

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jurisdiction of this Honourable Court as they do not constitute an employment or labour relations dispute. 12. It further argued that to the extent that the Claimant seeks to rely on the constitutional principle of the best interests of the child, such claims do not impose enforceable obligations on a private institution to provide education without payment, and do not convert an employment benefit into a perpetual entitlement. She deposed that the Claimant's Application is an abuse of the Court process, as it seeks to extend a terminated employment benefit beyond its lawful scope and compel the Respondent to provide services without consideration. 13. The respondent contended that during the claimant’s employment, her children benefited from a staff school fees subsidy, which was a discretionary employment benefit tied strictly to the subsistence of employment. The said staff benefit automatically ceased upon termination of the Claimant's employment, but in good faith and in line with its policy of safeguarding learners from disruption, it CAUSE RULING NO. E398 OF 2026 PAGE 9

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allowed the Claimant's children to continue attending school until the end of the term. 14. The respondent further averred that it duly communicated to the Claimant by email of 27 th April 2026 and during the meeting of 10th March 2026, that any continued attendance in subsequent school terms would be subject to fresh admission procedures and payment of full school fees applicable to non-staff learners. Therefore, it denied that it has not barred the Claimant's children from accessing education in the institution and maintained that it only required compliance with its standard admission and fee requirements applicable to non-staff parents. 15. The respondent contended that the Claimant is improperly seeking to convert an employment benefit into a continuing entitlement after termination of employment. It further contended that there exists no contractual, statutory, or legal basis for compelling the Respondent to provide education without payment of fees. Granting the orders sought would be unjust to the Respondent, and undermine the Respondent's operational sustainability. It CAUSE RULING NO. E398 OF 2026 PAGE 10

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maintained that the primary responsibility to provide education rests with the parent, not the Respondent. 16. The respondent averred that the claimant has since enrolled her children in another school and therefore the motion is overtaken by events. In the circumstances, it averred that the Application is misconceived, lacks legal foundation and is an abuse of the Court process. Analysis 17. Having considered the Notice of Motion, Affidavits, Notice of Preliminary Objection and the submissions filed by both parties, the main issues for determination are as follows: a) Whether the Respondent's Notice of Preliminary Objection dated 24th April 2026 is merited. b) Whether the Claimant has met the legal threshold for granting the interlocutory injunction sought by the Notice of Motion dated 16th April 2026. Respondent’s Preliminary objection dated 24th April 2026 CAUSE RULING NO. E398 OF 2026 PAGE 11

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18. The Respondent contended that this Honourable Court lacks jurisdiction to hear and determine the Claimant's Application in so far as it seeks orders relating to the education, admission and continued schooling of minors and/or children. 19. The Respondent further submitted that the issues raised in the Claimant's Application fall outside the scope and jurisdiction of this Honourable Court as specifically provided under Article 162(2) of the Constitution of Kenya, 2010 as read together with Section 12 of the Employment and Labour Relations Court Act, Cap 8E of the Laws of Kenya. 20. The claimant maintained that the court has jurisdiction to determine the suit because the admission of the school was part of her employment benefits which arose from the employment relationship with the respondent. She further averred that the objection by the respondent was raising a factual challenge that required adduction of evidence to establish. Therefore, she prayed for the objection to be dismissed as it failed to raise a pure point of law. CAUSE RULING NO. E398 OF 2026 PAGE 12

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21. The law on preliminary objections is well established. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court held that: "A preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit." 22. Law J.A in the same judgment stated that:“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by contract giving rise to the suit to refer the dispute to arbitration.” 23. The above principle of law was subsequently affirmed by the Supreme Court in the case of Hassan Ali Joho & CAUSE RULING NO. E398 OF 2026 PAGE 13

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Another v Suleiman Said Shahbal & 2 Others [2014] eKLR. 24. Having carefully considered the Preliminary Objection, and the rival contentions by the parties, I find that it raises a fundamental issue of law, that is, whether this Honourable Court is vested with jurisdiction to entertain a dispute concerning the education of admission, the retention Claimant's and children continued within the Respondent's educational institutions. This is a pure point of law that does not require the investigation of disputed facts or the evaluation of evidence. All that is required is examination of the applicable law to see whether the objection has merits. Therefore, I am satisfied that the preliminary objection is a proper one and meets the legal threshold contemplated in Mukisa biscuits case. 25. As regards the merits of the respondent’s objection, the jurisdiction of this Honourable Court is constitutionally anchored in Article 162(2)(a) of the Constitution of Kenya, 2010 which provides that Parliament shall establish courts with the status of the High Court to hear and determine CAUSE RULING NO. E398 OF 2026 PAGE 14

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disputes relating to employment and labour relations. Pursuant to that constitutional command, Parliament enacted the Employment and Labour Relations Court Act, No. 20 of 2011, establishing this Honourable Court and defining the scope of its jurisdiction under Section 12(1). 26. Section 12(1) of the Act provides that the Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including disputes relating to or arising out of employment between an employer and an employee. 27. A plain reading of Article 162(2)(a) of the Constitution together with Section 12(1) of the Employment and Labour Relations Court Act reveals that this Court is vested with jurisdiction to determine employment and labour relations disputes. The dispute before the court is a matter that forms part of the claimant’s employment contract. The respondent admitted in paragraph 2.2 of its written CAUSE RULING NO. E398 OF 2026 PAGE 15

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submissions that during the subsistence of the claimant employment, her children were enrolled in the school and benefited from staff school fees subsidy extended to eligible members of staff. 28. The claimant also produced copy of payslip indicating a benefit of school fees of Kshs.60,775.00 that was subjected to taxation as part of her employment package. To say that a claim based on the said education benefit was not an employment grievance would definitely be out of tune with reality. Any dispute related to a benefit in an employee’s employment contract, whether terminated or not, is a matter falling squarely under the unlimited original jurisdiction of this court. Consequently, I find no merits in the respondent’s preliminary objection and dismiss it. Claimant’s Notice of Motion dated 16th April 2026 29. As noted above, the Claimant’s Motion seeks interlocutory injunction to restrain the respondent from taking adverse action against her children including denial of access to the school and participation in academic programs and CAUSE RULING NO. E398 OF 2026 PAGE 16

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examinations pending determination of the suit. She is also seeking court orders compelling the respondent to retain her children in school pending trial and determination of the suit or at least upto the end of the year. 30. The principles for the grant of an interlocutory injunction were established in Giella v. Cassman Brown & Co Ltd [1973] EA 358, where the Court of Appeal for East Africa held that: “The conditions for the grant of an interlocutory injunction are now settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in CAUSE RULING NO. E398 OF 2026 PAGE 17

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doubt, it will decide an application on the balance of convenience.” 31. The claimant contended that the respondent has denied her children access to education in the school but the respondent has denied the said allegation. On the contrary, it has demonstrated by affidavit evidence that the children were never denied access to the school. It adduced evidence to the effect that after severing its employment relationship with the claimant, it allowed the children to remain in the school until the end of the term. It further demonstrated by evidence that it notified the claimant that upon termination of her employment she was required to enroll her children a fresh outside the subsidized staff arrangement. 32. Clause 8.2 of the respondent’s school fees policy (November 2025) provided that: “Staff children are eligible for tuition discount only, which the parent pays the school fees benefit to the tax authorities. All other fees CAUSE RULING NO. E398 OF 2026 PAGE 18

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must be paid in full and the parent is responsible. The benefit shall cease immediately upon the staff member’s exit from the organization. Where a staff member wishes for their child to continue in the school as a paying learner after separation from employment, the child shall be required to undergo a fresh registration process in line with the school admission procedure. Full fees must be paid before the learner is allowed to report to school.” 33. In view of the foregoing evidence, it is clear that the claimant lost the right to the subsidized school fees for her children the day her employment was terminated. In Eric V. J. Makhokha & 4 Others v Lawrence Sagini & 2 other [1994] KECA 60 (KLR) the Court of Appeal Held that: “On the main question debated in this case, we hold that in the event of the applicants being CAUSE RULING NO. E398 OF 2026 PAGE 19

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successful in their termination, their suit proper for legal wrongful remedy is damages and declarations. That being so the contract of employment having gone, the fridge benefit of subsidized housing went with it.” [emphasis added] 34. Having carefully evaluated the facts of the instant case and having sought guidance from the above binding decision, I hold that the claimant has not proved any prima facie case as was defined by the Court of Appeal in Mrao Ltd v. First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), thus: “It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 35. There is evidence that the claimant’s children are still welcome to study in the respondent’s school provided CAUSE RULING NO. E398 OF 2026 PAGE 20

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they meet the requirements of enrollment including payment of school fees at the normal rate for all students as opposed to subsidized staff rates. The subsidized rate was only a benefit tied to employment of the claimant as a staff of the school. The said employment having been terminated, the staff subsidized fees rate also went with the employment contract. 36. The Applicant having failed to establish a prima facie, the court should dismiss the application for interlocutory injunction without the need to consider the other two thresholds enunciated in the case of Giella v. Cassman Brown, supra. 37. I gather support from Ngurumani Limited v Jan Bonde Nielson & 2 others [2014] KECA 606 (KLR), where the Court of Appeal held that: “26. In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; CAUSE RULING NO. E398 OF 2026 PAGE 21

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(a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. 27. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. … If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be CAUSE RULING NO. E398 OF 2026 PAGE 22

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irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable interlocutory order normally granted, be of of paying, injunction however no should strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.” 38. For the reasons stated above, I hold that the claimant’s Notice of Motion dated 16th April 2026 lacks merits and it is dismissed. Disposition 39. Both the Respondent's Notice of Preliminary Objection dated 24th April 2026 and the Claimant's Notice of Motion dated 16th April 2026 are without merits and they are hereby dismissed. Accordingly, I award no costs. CAUSE RULING NO. E398 OF 2026 PAGE 23

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DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Ndegwa for Claimant Oduor for Mwende for Respondent CAUSE RULING NO. E398 OF 2026 PAGE 24

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