1. Damaris Wanjiru Ndichu (the Claimant) sued the 3 Respondents on 30 May 2024, asserting unfair termination of employment and violation of her right to fair labour practices.
2. The Claimant pleaded the following remedies:
(i) Compensation for unfair termination Kshs 360,000/- (12 x 30,000/-).
(ii) Compensation for violation of the right to fair labour practice – Kshs 3,000,000/-.
(iii) Issuance of a Certificate of Service.
(iv) Costs of this suit.
3. Upon service, the Respondents filed a Notice of Preliminary Objection on 27 August 2024, contending:
(i) THAT the suit is an abuse of the court process.
(ii) THAT based on Gazette Notice No. 6024 of 22 June 2018, which sets the jurisdiction of this Court to claims where an employee earned a gross monthly salary of Kes 80,000/- and above at the time of termination, the Court herein lacks jurisdiction to hear and determine the matter.
(iii) THAT the suit is incurably defective and the same ought to be struck out.
(iv) THAT the suit is incompetent and bad in law.
4. The Claimant’s advocate filed a replying affidavit in opposition to the Preliminary Objection on 25 September 2024.
5. In the affidavit, the Claimant deponed that the Gazette Notice did not donate power to the Magistrates Court to hear and determine disputes alleging violation of the right to fair labour practices as set out in Article 41 of the Constitution, and that under section 8(2) of the Magistrates Court Act, Magistrates can only hear and determine cases relating to the rights set out in Article 25(a) & (b) of the Constitution ( freedom from torture and cruel, inhuman or degrading treatment or punishment and freedom from slavery or servitude).
6. On 25 March 2025, the Court directed the parties to file and exchange submissions.
7. The parties’ submissions were not on record by the agreed-upon timelines.
8. The Court has considered the Statement of Claim, Notice of Preliminary Objection and replying affidavit.
9. The Claimant was earning a monthly salary of Kshs 30,000/-. On that basis, the Senior Resident Magistrates Court has the requisite delegated pecuniary jurisdiction.
10. However, the Claimant also pleaded to be granted compensation for the violation of the right to fair labour practice.
11. In terms of particulars of pleading, the Claimant made a general reference to the Respondent taking advantage of her long maternity leave to terminate her employment.
12. However, not every pleading of violation of fundamental rights and freedoms will divest the Magistrates Court of jurisdiction. The Court must keenly examine the pleadings to ensure that the same are not drafted to avoid moving the Magistrates Court. The Court says so because all claims of unfair termination of employment implicate the right to fair labour practices.
13. Maternity leave is a statutory right under the Employment Act. The Claimant did not allege discrimination on the ground of maternity. The particulars on maternity leave are not only general but do not isolate it as a cause of action.
14. The Senior Resident Magistrate's Court's jurisdiction over disputes concerning fundamental rights and freedoms is circumscribed by section 8 of the Magistrates Court Act.
15. The Claimants' Cause as drafted herein clearly leads this Court to conclude that the cause of action falls within the latitude of delegated jurisdiction within the context of Gazette Notice No. 6024 of 22 June 2018.
Orders
16. In light of the above, the Notice of Preliminary Objection is upheld with an order that the Cause be transferred to the Chief Magistrates Court, Milimani Commercial Courts.
17. Costs in the Respondent.
2. The Claimant pleaded the following remedies:
(i) Compensation for unfair termination Kshs 360,000/- (12 x 30,000/-).
(ii) Compensation for violation of the right to fair labour practice – Kshs 3,000,000/-.
(iii) Issuance of a Certificate of Service.
(iv) Costs of this suit.
3. Upon service, the Respondents filed a Notice of Preliminary Objection on 27 August 2024, contending:
(i) THAT the suit is an abuse of the court process.
(ii) THAT based on Gazette Notice No. 6024 of 22 June 2018, which sets the jurisdiction of this Court to claims where an employee earned a gross monthly salary of Kes 80,000/- and above at the time of termination, the Court herein lacks jurisdiction to hear and determine the matter.
(iii) THAT the suit is incurably defective and the same ought to be struck out.
(iv) THAT the suit is incompetent and bad in law.
4. The Claimant’s advocate filed a replying affidavit in opposition to the Preliminary Objection on 25 September 2024.
5. In the affidavit, the Claimant deponed that the Gazette Notice did not donate power to the Magistrates Court to hear and determine disputes alleging violation of the right to fair labour practices as set out in Article 41 of the Constitution, and that under section 8(2) of the Magistrates Court Act, Magistrates can only hear and determine cases relating to the rights set out in Article 25(a) & (b) of the Constitution ( freedom from torture and cruel, inhuman or degrading treatment or punishment and freedom from slavery or servitude).
6. On 25 March 2025, the Court directed the parties to file and exchange submissions.
7. The parties’ submissions were not on record by the agreed-upon timelines.
8. The Court has considered the Statement of Claim, Notice of Preliminary Objection and replying affidavit.
9. The Claimant was earning a monthly salary of Kshs 30,000/-. On that basis, the Senior Resident Magistrates Court has the requisite delegated pecuniary jurisdiction.
10. However, the Claimant also pleaded to be granted compensation for the violation of the right to fair labour practice.
11. In terms of particulars of pleading, the Claimant made a general reference to the Respondent taking advantage of her long maternity leave to terminate her employment.
12. However, not every pleading of violation of fundamental rights and freedoms will divest the Magistrates Court of jurisdiction. The Court must keenly examine the pleadings to ensure that the same are not drafted to avoid moving the Magistrates Court. The Court says so because all claims of unfair termination of employment implicate the right to fair labour practices.
13. Maternity leave is a statutory right under the Employment Act. The Claimant did not allege discrimination on the ground of maternity. The particulars on maternity leave are not only general but do not isolate it as a cause of action.
14. The Senior Resident Magistrate's Court's jurisdiction over disputes concerning fundamental rights and freedoms is circumscribed by section 8 of the Magistrates Court Act.
15. The Claimants' Cause as drafted herein clearly leads this Court to conclude that the cause of action falls within the latitude of delegated jurisdiction within the context of Gazette Notice No. 6024 of 22 June 2018.
Orders
16. In light of the above, the Notice of Preliminary Objection is upheld with an order that the Cause be transferred to the Chief Magistrates Court, Milimani Commercial Courts.
17. Costs in the Respondent.