Rose Naliaka Mulunda v Searite Holdings Limited

(c) General damages in terms of Article 23(3)(e) of the Constitution of Kenya 2010 for breach, violation and abuse of constitutional rights under Articles 27, 28, 29(d) & (f), 41(2)(b) and 43 of the Constitution. (d) A declaration that the Respondent subjected the Claimant to mental anguish, psychological torture, emotional stress, pain and suffering. (e) Compensation for mental anguish, emotional stress, pain and suffering. (f) An order that the Respondent pays the Claimant DRAFT terminal dues amounting to Kshs.4,205,846.3. 2. (g) Certificate of service. (h) Costs of the suit and interest. The Claimant pleaded, inter-alia:(a) that the Claimant was in February 2016 employed by the Respondent as a day security guard at a monthly salary of Kshs.5,500/=; which was in May 2022 reviewed upwards to Kshs.9,500/=. RULING Nairobi ELRC Cause No. E507 of 2025 2 of 9

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(b) that the Claimant worked diligently, from 6 a.m to 6 p.m without being paid overtime. (c) that the Claimant was on 29th December, 2024 attacked and assaulted by unknown people at her station of work (Kiambu Township Secondary School), as a result of which she sustained injuries which included a fracture of her left distal ulna. (d) that in pain, the Claimant sought financial assistance from the Respondent for treatment, but her pleas were ignored. DRAFT (e) that the Respondent deployed a new guard to the Claimant’s work station and orally terminated the Claimant’s employment for being unfit to continue working on the broken arm. 3. The Respondent filed a Notice of Preliminary Objection on points of law dated 19th September, 2025 and called for the suit to be struck off on the following grounds:(a) That this Court lacks Jurisdiction to entertain the claim herein. RULING Nairobi ELRC Cause No. E507 of 2025 3 of 9

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(b) That filing of the suit herein before this Court subverts the objectives and purpose of Gazette Notice No. 6024 of 2018 which provides that employment claims ought to be filed before the Magistrates Court where monthly salary is below Kshs.80,000/=. (c) That the Memorandum of Claim herein offends the doctrine of constitutional avoidance by raising constitutional issues with regard to an employment dispute despite the availability of sufficient mechanisms and reliefs under the DRAFT Employment Act, Cap. 226. (d) That the claim herein, filed before this Court, constitutes an abuse of court process; and that the same ought to be struck off with costs to the Respondent. 4. The sole issue that falls for determination in this matter is whether this Court is seized of Jurisdiction to entertain, to hear and to determine the suit herein. RULING Nairobi ELRC Cause No. E507 of 2025 4 of 9

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5. By dint of Article 162(2)(a) of the Constitution of Kenya 2010, this Court is endowed with Jurisdiction to hear and to determine disputes relating to employment and labour relations. Article 162(3) of the Constitution mandated Parliament to determine this Court’s Jurisdiction, which mandate Parliament executed by enacting the Employment and Labour Relations Court Act. 6. The Court of Appeal stated as follows in the case of Paramount Bank Limited – vs – Vaqvi Syed Qamara & Another [2017] eKLR:“The preamble to the Employment and Labour DRAFT Relations Court Act states that the Court is established to hear and determine disputes relating to “employment and labour relations” and “for connected purposes”. Among its powers under Section 12, the Court hears and determines all disputes relating to and arising out of employment and labour relations. In the exercise of that jurisdiction, the Court has the power to award compensation or damages in any circumstances contemplated under the Act or any RULING Nairobi ELRC Cause No. E507 of 2025 5 of 9

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other written law and to grant any other appropriate relief that it may deem fit.” 7. In the present suit, the Claimant claims payment of terminal dues arising from an employment contract/relationship between herself and the Respondent. She also pleads breach and violation of her constitutional rights by the Respondent. She seeks declaratory orders regarding the alleged breach and violation. She also claims damages for the alleged breach and violation. 8. The import of all the foregoing is that this Court has DRAFT Jurisdiction over all matters employment and labour relations, except where such jurisdiction is specifically ousted by statute over particular issues specifically specified in the ousting statute. And even then, this Court would still retain inherent residual jurisdiction over such specified matters/issues, as any party to a dispute arising from such matters would be entitled to to seek redress from the Court. The right of access to justice can never be taken away. RULING Nairobi ELRC Cause No. E507 of 2025 6 of 9

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9. Gazette Notice No. 6024 of 2018 did not take away this Court’s Jurisdiction to hear and to determine matters where an employee was earning below Kshs.80,000/=, but rather delegated some of the Court’s Jurisdiction over such matters to the Magistrate’s Courts; possibly to ease workload on the Court. A matter filed in this Court instead of the Magistrates’ Court does not become incompetent by virtue of that filing. This Court may, where appropriate, transfer such matters to the Magistrate’s Court for hearing and determination. DRAFT 10. The situation will, however, be different if an employment suit where an employee was earning more Kshs.80,000/= is filed in the Magistrates’ Court. than Such suit will be dead on arrival; and its filing will be an abuse of the Court’s process. 11. On the alleged breach of the doctrine of constitutional avoidance, the Court of Appeal stated as follows in the case of Mohamed Abduba Dida – vs – Debate Media Limited & Another [2018] eKLR:- RULING Nairobi ELRC Cause No. E507 of 2025 7 of 9

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“. . . This is to say that, ordinarily, the burden of demonstrating that a right has been infringed would be upon the person alleging such violation, as that person would be in a better position to prove it. . . . Once the case is made out, the burden shifts to the other party. . . .” 12. In the present case, it will be incumbent upon the Claimant to prove breach and violation of her constitutional rights as alleged, within the context of, and during her employment by the Respondent. Such proof can only be by way of DRAFT evidence in a trial. The fact that the Claimant was earning a salary that was below Kshs.80,000/= is not a bar to her moving this Court regarding alleged violation and/or breach of her constitutional rights, provided that the issues involved fall within the Jurisdiction of this Court. Rule 10(3) of the Employment and Labour Relations Court [Procedure] Rules 2024 is called in aid. 13. Having said that, and having considered the written submissions filed, I find no merit in the Respondent’s Preliminary Objection dated 19th September, 2025, and the same is hereby dismissed with costs. RULING Nairobi ELRC Cause No. E507 of 2025 8 of 9

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DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. DRAFT AGNES KITIKU NZEI JUDGE Appearance: Miss Mwangi for the Claimant Mr. Mwenda for the Respondent RULING Nairobi ELRC Cause No. E507 of 2025 9 of 9

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