Introduction
1. The Application dated 10 th May 2025 seeks to strike out the Petition on the basis that this Honourable Court lacks of jurisdiction to entertain the same. The applicants further contend that the statement of facts relied on in the Petition is scandalous, vexatious and an otherwise abuse of the court process hence should be struck out.
2. The petitioners/respondents filed a replying affidavit dated 9 th June 2025, in opposition to the Application.
The 2 nd – 6 th Respondents/Applicants’ Case
3. The applicants assert that the facts upon which the Petition is founded are outside the constitutional jurisdiction of this Honourable Court. They contend that the matter is within the competence of the Employment and Labour Relations Court pursuant to Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act hence the matter cannot be entertained by this Court.
4. The applicants averred the Petitioners case is that on 20 th June 2023 and 21 st June 2023, the minors were alleged to have engaged in indecent acts/behaviours associated with lesbian, gay, bisexual and transgender (LGBTQ). As a result, some of the school’s teachers and administrators- the 2 nd to 6 th respondents and a matron by the name Agnes allegedly unjustifiably perpetrated physical, psychological and sexual assault against the minors.
5. That on 21 st June 2023 at 7.30 pm, LR, a minor was summoned by the 3 rd respondent to a building or room known as the “sick room” within the school premises where she was confronted with accusations of engaging in, and, or being associated with, the said indecent acts. Further the 3 rd respondent in the company of the matron, Agnes assaulted LR physically with a wooden mopping stick and slapped her on the whist in a bid to extract a confession from her in respect of the allegations.
6. Further, the 3 rd respondent in the company of the matron Agnes threatened further violence on L.R. if she failed to comply to confess. LR was afterwards dragged to the dormitory where the more physical and psychological violence continued for three (3) hours whereby L.R was forced, coerced and/or intimidated into giving confessions on foolscaps handed over to her during the violent interrogation.
7. On 20 th June 2023, C.M.A, another minor was summoned to the sick room by the 3 rd respondent on allegations of participating in indecent acts. The 3 rd respondent would ridicule, insult and/or mock and tribally profile the minor to the effect that “umetoka Kakamega na unataka kutuletea mapepo yako huku” which means “you are from Kakamega and want to bring your demons here” and which statement was meant and/or intended to profile the minor on account of her tribe. The 3 rd respondent further brutally interrogated her family background including the financial status of her family.
8. C.M.A was physically and psychologically assaulted by the 2 nd to 6 th respondents in the company of madam Agnes and Ms. Maxmilla. In some instances, the respondents used a wooden mopping stick, a metal bar in addition to slapping her around. The minor was also later dragged to the dormitory where the physical and psychological violence went on continuously until 10.45 pm. C.M.A was forced, coerced and/or intimidated into giving a confession in writing on foolscaps during the violent ordeal.
9. On 21 st June 2023 at 8.40 am the minor CMA was again summoned to the sick room where she was further assaulted by the 2 nd , 5 th and 6 th respondents. The 6 th respondent partially stripped the minor and severally made physical contacts with her private parts and demanded the minor shows the ‘reproductive male organ’ referring to her as “mbaba” and “mwanamume” which terms translates in their ordinary meaning and/or reference to “man.” The striping and sexual assault happened before the 2 nd and 5 th respondents.
10. Further the 6 th respondent stripped the C.M.A of her clothes to ascertain whether she possessed male reproductive organ and to examine whether she had engaged in the alleged sexual indecency. Additionally, the 6 th respondent accused the minor of having changed her name Maria to simply Adams and trimming her hair short, describing the conduct as indicative of the orientation towards the sexual indecency and/or association.
11. The minors L.R. and C.M.A were then suspended from school until 7 th July 2023 and 10 th July 2023 respectively and directed to bring along the applicants-their respective parents and next of kins. C.M.A developed complications afterwards and was treated at Kenyatta National Hospital. She reported the assault at Parklands Police Station under Occurrence Book (O.B) No. 44 of 23 rd June 2023 and also obtained a medical examination report.
12. The Respondents contend that the forgoing allegations are scandalous and vexatious and invite the Court to strike out statements of facts containing the allegations terming them an abuse of the Court process.
The Petitioners’/Respondents’ Case
13. The Petitioners/respondents in response countered that the application misconceives the petition as encompassing a labour dispute yet in contrast, Petition is about gross and profound violations of the minors’ rights and fundamental freedoms as learners who were under the direct supervision of the 2 nd to 6 th respondents.
14. Further, the Petitioners contended that none of the prayers sought in the Petition is labour related hence the applicants’ assertions are totally misplaced.
15. The respondents reveal that the instant application is merely meant to scuttle and subvert the course of justice by denying them a hearing of the petition on merits. The Petitioners accused the 2 nd applicant of applying tactics to ensure the instant petition will never be heard substantively by filing vexatious applications one after the another without prosecuting them for instance, the notice of preliminary objection dated 25 th September 2023, the application dated 21 st November 2024 which the 2 nd applicant withdrew; application dated 2 nd December 2024 which was withdrawn on 26 th February 2025 and the 2 nd applicant’s outgoing advocate one P.G. Kaingu filed an application dated 16 th November 2023 which he also failed to exhaustively prosecute and the 2 nd applicant conceded to its determination by the court suo moto on 26 th February 2025. Further, the 2 nd applicant failed to serve the applications dated 21 st November 2024 and 2 nd December 2024 to the Hon. Attorney General which conduct was simply a ploy to waste the time of the court and delay of the hearing of the petition.
16. The Petitioner aver that the petition raises immensely important issues touching on gross and incomprehensible levels of violations of constitutional rights and fundamental freedoms of the minors who are school-going. The Petitioners contend that the matter involves minors in itself shows the gravity of the matter and the need to expedite hearing. The respondents further countered that the applicants’ contention that the instant suit has caused them mental anguish, shame and embarrassment to the extent of seeking professional assistance is not an issue for consideration or determination before the court.
17. In any event, the applicants have brought all their tribulations, if any, upon themselves and are aggravating the situation by their careless and unremorseful frustration of the matter through dubious and outlandish applications.
18. The applicants filed a Supplementary Affidavit dated 26 th August 2025 and states that the petitioners are well aware that the first port of call in respect of their complaint was the Teachers Service Commission through its agent, the Board of Management of Parklands Arya Girls Secondary School. By a letter dated 4 th July 2023, the petitioners’ advocates complained to their employer on the issues of the petition and ten days later, before their employer could process the complaint, they wrote a further letter dated 14 th July 2023 to their employer to the effect that they are no longer interested in any resolution for they had decided to move to court, which they did by filing the instant suit. Nonetheless, the Teachers Service Commission carried out investigations on the matter between 5 th and 8 th of September 2023 and later issued them with show cause letters dated 16 th October 2023 and further interdictions dated 5 th December 2023. The hearing was conducted on 1 st February 2024, and the Teachers Service Commission suspended them for a period of 3 months without pay as punishment with effect from 1 st February 2024 and the case concluded.
19. The applicants aver that the guilty finding was merely to please the petitioners and was not based on facts and they abstained from appealing due to the scandalous and vexatious nature of the complaint.
20. Parties put in written submissions.
The Applicants’ Submissions.
21. The applicants listed the issues for determination as whether the jurisdiction over the subject matter falls under this honourable court or the employment and labour relations court; whether the petitioner violated the principles of exhaustion and whether they should have sued the Teachers Service Commission if at all and whether the petition is scandalous, vexatious and an abuse of the court process.
22. On the issue of jurisdiction, the applicants argue that the jurisdiction of the employment and labour relations court flows from Article 162(2) of the Constitution and Section 12 of the Employment and labour Relations Court Act . Further Section 10 of the Employment Act refers to employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship while Section 12(1) of the Act provides as thus: -
A statement under section 10 shall-
a) Specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;
b) Specify the person to whom the employee may apply-
i) If dissatisfied with any disciplinary decision relating to the employee; and
ii) For the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; and
c) Where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.
23. Further Section 86 of the Employment Act provides as thus:-
1. Subject to the provisions of this Act whenever-
a) An employer or employee neglects or refuses to fulfil a contract of service; or
b) Any question, difference or dispute arises as to the rights or liabilities of either party; or
c) Touching any misconduct, neglect or ill treatment of either party or an injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.
2. No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection 1.
24. The applicants submit that the employment and labour relations court is the forum to deal with any other fundamental rights and freedoms arising out of employment and labour relations. Reliance was placed in the case of United States International University (USIU) vs Attorney General Nairobi [2012] eKLR: -
Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court.
25. Further reliance was placed in the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling) :-
It is without doubt that the gist of the petitioner’s complaint hinges around the 1 st respondent’s conduct as an employee of the 4 th respondent. The Petitioner complains about the 1 st respondent’s alleged alcoholism which she claims has hindered the ability of the 1 st Respondent to make good judgment in execution of her duties at as a public officer employed by the 4 th Respondent.
The Employment Act under Section 12 (1) provides as follows:
Statement on disciplinary rules
1. A statement under Section 10 shall—
a. specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;
b. specify the person to whom the employee may apply—
(i) if dissatisfied with any disciplinary decision relating to the employee; and
(ii) for the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; and
c. where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.
Section 10 of the Act refers to the Employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship.
Section 86 of the Act defines the scope of disputes and the manner in which the same are to be determined. This Section provides as follows:
Complaint and jurisdiction in cases of dispute between employers and employees
2. Subject to the provisions of this Act whenever—
a. an employer or employee neglects or refuses to fulfill a contract of service; or
b. any question, difference or dispute arises as to the rights or liabilities of either party; or
c. touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.
(2) No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection (1).
(3) This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.
In this petition, the petitioner contends that the 1 st respondent’s conduct as a public officer employed by the 4 th respondent affects 1 st respondent ability to make good judgments and work diligently. Clearly, the substratum of the Petition rests on the 1 st Respondent employment with the 4 th Respondent.
In the landmark decision of Republic vs Karisa Chengo & 2 others (Petition 5 of 2015) [2017]KESC15 (KLR0 , the Supreme Court clarified the jurisdiction of Special Courts under Article 162 vis-à-vis the High Court held as follows:
“[50] It is against the above background, that Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. … The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.”
[51] Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions…”
The Court went on to further state:
“…[52] … As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”
Considering that the gist of this Petition centers around the conduct of the 1 st Respondent as an employee of the 4 th Respondent, it follows that the Court with jurisdiction over this matter is the Employment and Labour Relations Court even assuming that the matter raises a constitutional question. Employment and Labour Relations Court has the jurisdiction to interpret the Constitution in matters falling within the scope of its jurisdiction. This was the holding of the Court of Appeal in Attorney General & 2 Others vs Okiya Omtata & 11 Others (2020) eKLR where the Court held thus:
“We have no doubt that the ELRC and ELC have jurisdiction to interpret and apply the Constitution as held by the High Court in United States International University v The Attorney General (2012) eKLR and this Court in Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR. However, the jurisdiction of those specialized courts to interpret and apply the Constitution is not original or unlimited like that of the High Court. It is limited to constitutional issues that arise in the context of disputes on employment and labour relations on environment and land matters…”
26. The applicants further referred to the case of Hezekiah Chepkwony& 2 Others vs Cabinet Secretary Ministry of Health & 2 Others [2020] eKLR which determined that:-
Unlike the private sector where terms of service are regulated purely by the contract of service between the parties involved, in the public sector the contract of service is regulated by both the contract of service signed between the parties in addition to the Human Resource Policies and Procedures Manual for the public Service and a mosaic of public law which includes the Constitution, statutes, subsidiary legislations, government circulars and legal notices among others.
27. The applicants referred to Section 59(f) of the Basic Education Act which provides that:-
The functions of the Board of Management of a basic education institution shall be to determine cases of pupils’ discipline and make reports to the County Education Board.
28. The applicants asserted that in the instant petition, while in pursuit of implementation of the immediate foregoing statutory contractual performance of investigation of involvement of students in sexual misconduct described by petitioners themselves as lesbianism, gay, bisexual and transgender admitted by students themselves and which sexual misconduct is contra-statute in terms of school rules and regulations; the respondents were themselves turned against and accused by the petitioners of engaging in misconduct in the course of the foregoing performance of their duties provided at Section 34(2) of the Teachers Service Commission Act as read with schedule 3.
29. Furthermore, Regulations 144 to 154 of the Teachers Service Commission Code of Regulations for Teachers provide for the procedure for reporting any misconduct by teachers and the disciplinary procedure including investigations, interdictions and punishment. Particularly Regulation 144(1) and 145(1) provide that:-
A person having any allegations of misconduct against a teacher may report the allegation to the Secretary Board of Management.
Any person with information that a teacher has engaged in professional misconduct or any conduct contravening these regulations may lodge a complaint in writing, clearly indicating the nature of the complaint.
30. The applicants submitted that the petitioners concealed from the court that the Teachers Service Commission had subjected them to three months suspension without pay as punishment with effect from 1 st February 2024 upon the commission carrying out investigations on the complaint and serving them with notice to show cause letters dated 16 th October 2023. Thus considering the gist of the petition centres around the conduct of the applicants as employees of the 2 nd interested party and the 1 st respondent, it follows the court with jurisdiction over the said matter is the Employment and Labour Relations Court.
31. On the second issue for determination, reliance was placed on the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling) where the court held:-
The doctrine was discussed by the Supreme Court in Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR where the Court observed thus:
“[51] Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism…”
Applying the same principle, the High Court in the case of Law Society of Kenya v Attorney General & Another; National Commission for Human Rights & Another (Interested Parties) (2020) eKLR held as follows:
“…Where the Constitution has reposed specific functions in an institution or organ of the State, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution…”
It follows therefore that in respect of violation relating to leadership and integrity provisions; such as allegations that the 1 st Respondent misconduct violates Chapter Six of the Constitution and the provisions of the Leadership and Integrity Act; the body that is charged with the responsibility of overseeing compliance with those provisions by public officer is in the first instance the Ethics and Anti-Corruption Commission in the light of the specific responsibility under Section 4 (2) & (3) of the Leadership and Integrity Act.
It was therefore premature for the Petitioner institute this Petition before giving the Ethics and Anti-Corruption Commission a chance to enquire into and ascertain the allegations against the 1 st Respondent.
This Court will not be rushed to intrude into matters that generally fall within the area of responsibility of other institutions or agencies of Government. There was haste in invoking the jurisdiction of this Court prematurely. The petition thus offends the doctrine of abstention.
32. Further reliance was placed on Regulation 156(1) and (8) of the Teachers Service Commission Code of Regulations which provides:-
There is established an adhoc Committee of the Commission known as Teachers Service Review Committee which shall consider and determine reviews arising from the discipline process under these regulations.
The Review Committee shall upon receiving an application for review, consider the application and may-
a) Uphold the decision and subsequently dismiss the application for review;
b) Allow the review and set aside the decision; or
c) Vary the decision on such terms as it may deem fit.
33. The applicants argued that if the petitioners were dissatisfied with the commission’s final decision of their punishment, they had the option of suing the employer, the Teachers Service Commission in the employment and labour relations court for damages or for review of its decision.
34. On the final issue of determination, reliance was placed in the decision of Elijah Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Alliance vs Mara Conservancy & 5 Others [2014] KEHC 4420 (KLR) where the court held that:-
However, for purposes of striking out a pleading under Order 2, rule 15, the word “scandalous” is not limited to the “indecent”, “offensive” and “the improper” and that the denial of a well known fact can also be rightly described as scandalous but may not be scandalous of the matter. J. B. MACHARIA VS. WANGECHI MWANGI & NATION NEWSPAPERS LTD (Nairobi Civil Appeal No. 179 of 1997). However scandalous is relevant and admissible in evidence in proof of the truth of the allegation in the plaint or defence so that when considering whether the matter is scandalous regard must be had to the nature of the action.
According to the authors of BULLEN & LEAKE & JACOBS PREDENTS OF PLEADING (12th Edn) – a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless and offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense.”
A matter is said to be “vexatious” when -
(i) it has no foundation, or
(ii) it has no chance of succeeding, or
(iii) the pleading (plaint or defence), is brought merely for the purpose of annoyance, or
(iv) it is brought so that the party's pleading should have some fanciful advantage, or
(v) where it can really lead to no possible good (per WILLIS VS. EARL BEAUCHAMP (1866) 11 PD 59).
A pleading is an abuse of the process where it is frivolous or vexatious or both; but where the pleading as it stands is not really embarrassing – it is wiser to leave it un-amended or to apply for further particulars – KEMSLEY VS. FOOT [1952] A.C. 325.
35. The applicants argued that the fact that the allegations are of criminal nature having been reported as assault to Parklands Police Station under Occurrence Book (OB) No. 44 on 23 rd June 2023 and obtaining a medical examination report, P3 Form and the failure of any charges preferred against them is a testament that the allegations are baseless and have no chance of success.
The Petitioners’/ Respondents’ Submissions.
36. The respondents list the issues for determination as whether this Honourable Court has jurisdiction to hear the matter ; whether the petition herein is scandalous, vexatious and an abuse of the court process and whether the application is merited . The respondents argued that the applicants’ arguments are basically based on two grounds that the instant dispute is labour related and that the 2 nd interested party having already undertaken disciplinary action against the applicants, their course of action is moot or fully canvassed .
37. The Petitioners/respondents submitted that the preamble to the Teachers Service Commission Act states that the Act serves to make further provision for the Teachers Service Commission established under Article 237 of the Constitution , its composition; functions and powers; the qualifications and procedure for appointment of members; and for connected purposes. The Act is primarily meant to provide for the creation and regulation of the 2 nd interested party in accordance with Articles 237 and 248(2)(i) of the Constitution and the relationship between the 2 nd interested party and registered teachers across the country. Sections 11 and 12 of the Act clearly indicate that the functions and powers of the 2 nd interested party relate to either the 2 nd interested party itself as well as teachers registered by the 2 nd interested party. Further Section 11 of the Act provides that the functions of the 2 nd interested party inter alia is to ensure that teachers comply with the teaching standards prescribed by the TSC under the Act ; manage payroll of teachers in its employment; facilitate career progression and professional development for teachers in the teaching service including the appointment of head teachers and principals; and monitor the conduct and performance of teachers in the teaching service.
38. The Petitioners/ respondents submitted that Part III of the TSC Act deals with the registration and Discipline of Teachers and Compliance with teaching standards. Article 237(2) of the Constitution provides that the functions of the 2 nd interested party are to register trained teachers; to recruit and employ registered teachers; to assign teachers employed by TSC for service in any public school or institution; to promote and transfer teachers; to exercise disciplinary control over teachers and to terminate the employment of teachers . Sections 33 and 34(3) of the TSC Act provides that the 2 nd interested party after interdicting a teacher is empowered to take disciplinary actions against a registered teacher, including by way of issuance of a warning letter, surcharging the teacher; suspending the teacher for such period not exceeding six months; cancelling a registration certificate and removing the n
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1. The Application dated 10 th May 2025 seeks to strike out the Petition on the basis that this Honourable Court lacks of jurisdiction to entertain the same. The applicants further contend that the statement of facts relied on in the Petition is scandalous, vexatious and an otherwise abuse of the court process hence should be struck out.
2. The petitioners/respondents filed a replying affidavit dated 9 th June 2025, in opposition to the Application.
The 2 nd – 6 th Respondents/Applicants’ Case
3. The applicants assert that the facts upon which the Petition is founded are outside the constitutional jurisdiction of this Honourable Court. They contend that the matter is within the competence of the Employment and Labour Relations Court pursuant to Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act hence the matter cannot be entertained by this Court.
4. The applicants averred the Petitioners case is that on 20 th June 2023 and 21 st June 2023, the minors were alleged to have engaged in indecent acts/behaviours associated with lesbian, gay, bisexual and transgender (LGBTQ). As a result, some of the school’s teachers and administrators- the 2 nd to 6 th respondents and a matron by the name Agnes allegedly unjustifiably perpetrated physical, psychological and sexual assault against the minors.
5. That on 21 st June 2023 at 7.30 pm, LR, a minor was summoned by the 3 rd respondent to a building or room known as the “sick room” within the school premises where she was confronted with accusations of engaging in, and, or being associated with, the said indecent acts. Further the 3 rd respondent in the company of the matron, Agnes assaulted LR physically with a wooden mopping stick and slapped her on the whist in a bid to extract a confession from her in respect of the allegations.
6. Further, the 3 rd respondent in the company of the matron Agnes threatened further violence on L.R. if she failed to comply to confess. LR was afterwards dragged to the dormitory where the more physical and psychological violence continued for three (3) hours whereby L.R was forced, coerced and/or intimidated into giving confessions on foolscaps handed over to her during the violent interrogation.
7. On 20 th June 2023, C.M.A, another minor was summoned to the sick room by the 3 rd respondent on allegations of participating in indecent acts. The 3 rd respondent would ridicule, insult and/or mock and tribally profile the minor to the effect that “umetoka Kakamega na unataka kutuletea mapepo yako huku” which means “you are from Kakamega and want to bring your demons here” and which statement was meant and/or intended to profile the minor on account of her tribe. The 3 rd respondent further brutally interrogated her family background including the financial status of her family.
8. C.M.A was physically and psychologically assaulted by the 2 nd to 6 th respondents in the company of madam Agnes and Ms. Maxmilla. In some instances, the respondents used a wooden mopping stick, a metal bar in addition to slapping her around. The minor was also later dragged to the dormitory where the physical and psychological violence went on continuously until 10.45 pm. C.M.A was forced, coerced and/or intimidated into giving a confession in writing on foolscaps during the violent ordeal.
9. On 21 st June 2023 at 8.40 am the minor CMA was again summoned to the sick room where she was further assaulted by the 2 nd , 5 th and 6 th respondents. The 6 th respondent partially stripped the minor and severally made physical contacts with her private parts and demanded the minor shows the ‘reproductive male organ’ referring to her as “mbaba” and “mwanamume” which terms translates in their ordinary meaning and/or reference to “man.” The striping and sexual assault happened before the 2 nd and 5 th respondents.
10. Further the 6 th respondent stripped the C.M.A of her clothes to ascertain whether she possessed male reproductive organ and to examine whether she had engaged in the alleged sexual indecency. Additionally, the 6 th respondent accused the minor of having changed her name Maria to simply Adams and trimming her hair short, describing the conduct as indicative of the orientation towards the sexual indecency and/or association.
11. The minors L.R. and C.M.A were then suspended from school until 7 th July 2023 and 10 th July 2023 respectively and directed to bring along the applicants-their respective parents and next of kins. C.M.A developed complications afterwards and was treated at Kenyatta National Hospital. She reported the assault at Parklands Police Station under Occurrence Book (O.B) No. 44 of 23 rd June 2023 and also obtained a medical examination report.
12. The Respondents contend that the forgoing allegations are scandalous and vexatious and invite the Court to strike out statements of facts containing the allegations terming them an abuse of the Court process.
The Petitioners’/Respondents’ Case
13. The Petitioners/respondents in response countered that the application misconceives the petition as encompassing a labour dispute yet in contrast, Petition is about gross and profound violations of the minors’ rights and fundamental freedoms as learners who were under the direct supervision of the 2 nd to 6 th respondents.
14. Further, the Petitioners contended that none of the prayers sought in the Petition is labour related hence the applicants’ assertions are totally misplaced.
15. The respondents reveal that the instant application is merely meant to scuttle and subvert the course of justice by denying them a hearing of the petition on merits. The Petitioners accused the 2 nd applicant of applying tactics to ensure the instant petition will never be heard substantively by filing vexatious applications one after the another without prosecuting them for instance, the notice of preliminary objection dated 25 th September 2023, the application dated 21 st November 2024 which the 2 nd applicant withdrew; application dated 2 nd December 2024 which was withdrawn on 26 th February 2025 and the 2 nd applicant’s outgoing advocate one P.G. Kaingu filed an application dated 16 th November 2023 which he also failed to exhaustively prosecute and the 2 nd applicant conceded to its determination by the court suo moto on 26 th February 2025. Further, the 2 nd applicant failed to serve the applications dated 21 st November 2024 and 2 nd December 2024 to the Hon. Attorney General which conduct was simply a ploy to waste the time of the court and delay of the hearing of the petition.
16. The Petitioner aver that the petition raises immensely important issues touching on gross and incomprehensible levels of violations of constitutional rights and fundamental freedoms of the minors who are school-going. The Petitioners contend that the matter involves minors in itself shows the gravity of the matter and the need to expedite hearing. The respondents further countered that the applicants’ contention that the instant suit has caused them mental anguish, shame and embarrassment to the extent of seeking professional assistance is not an issue for consideration or determination before the court.
17. In any event, the applicants have brought all their tribulations, if any, upon themselves and are aggravating the situation by their careless and unremorseful frustration of the matter through dubious and outlandish applications.
18. The applicants filed a Supplementary Affidavit dated 26 th August 2025 and states that the petitioners are well aware that the first port of call in respect of their complaint was the Teachers Service Commission through its agent, the Board of Management of Parklands Arya Girls Secondary School. By a letter dated 4 th July 2023, the petitioners’ advocates complained to their employer on the issues of the petition and ten days later, before their employer could process the complaint, they wrote a further letter dated 14 th July 2023 to their employer to the effect that they are no longer interested in any resolution for they had decided to move to court, which they did by filing the instant suit. Nonetheless, the Teachers Service Commission carried out investigations on the matter between 5 th and 8 th of September 2023 and later issued them with show cause letters dated 16 th October 2023 and further interdictions dated 5 th December 2023. The hearing was conducted on 1 st February 2024, and the Teachers Service Commission suspended them for a period of 3 months without pay as punishment with effect from 1 st February 2024 and the case concluded.
19. The applicants aver that the guilty finding was merely to please the petitioners and was not based on facts and they abstained from appealing due to the scandalous and vexatious nature of the complaint.
20. Parties put in written submissions.
The Applicants’ Submissions.
21. The applicants listed the issues for determination as whether the jurisdiction over the subject matter falls under this honourable court or the employment and labour relations court; whether the petitioner violated the principles of exhaustion and whether they should have sued the Teachers Service Commission if at all and whether the petition is scandalous, vexatious and an abuse of the court process.
22. On the issue of jurisdiction, the applicants argue that the jurisdiction of the employment and labour relations court flows from Article 162(2) of the Constitution and Section 12 of the Employment and labour Relations Court Act . Further Section 10 of the Employment Act refers to employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship while Section 12(1) of the Act provides as thus: -
A statement under section 10 shall-
a) Specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;
b) Specify the person to whom the employee may apply-
i) If dissatisfied with any disciplinary decision relating to the employee; and
ii) For the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; and
c) Where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.
23. Further Section 86 of the Employment Act provides as thus:-
1. Subject to the provisions of this Act whenever-
a) An employer or employee neglects or refuses to fulfil a contract of service; or
b) Any question, difference or dispute arises as to the rights or liabilities of either party; or
c) Touching any misconduct, neglect or ill treatment of either party or an injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.
2. No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection 1.
24. The applicants submit that the employment and labour relations court is the forum to deal with any other fundamental rights and freedoms arising out of employment and labour relations. Reliance was placed in the case of United States International University (USIU) vs Attorney General Nairobi [2012] eKLR: -
Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court.
25. Further reliance was placed in the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling) :-
It is without doubt that the gist of the petitioner’s complaint hinges around the 1 st respondent’s conduct as an employee of the 4 th respondent. The Petitioner complains about the 1 st respondent’s alleged alcoholism which she claims has hindered the ability of the 1 st Respondent to make good judgment in execution of her duties at as a public officer employed by the 4 th Respondent.
The Employment Act under Section 12 (1) provides as follows:
Statement on disciplinary rules
1. A statement under Section 10 shall—
a. specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;
b. specify the person to whom the employee may apply—
(i) if dissatisfied with any disciplinary decision relating to the employee; and
(ii) for the purpose of seeking redress of any grievance relating to his employment, and the manner in which an application shall be made; and
c. where there are further steps to be taken consequent to any such application, the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.
Section 10 of the Act refers to the Employment particulars that includes the terms of engagement between an employer and an employee once they enter into an employment relationship.
Section 86 of the Act defines the scope of disputes and the manner in which the same are to be determined. This Section provides as follows:
Complaint and jurisdiction in cases of dispute between employers and employees
2. Subject to the provisions of this Act whenever—
a. an employer or employee neglects or refuses to fulfill a contract of service; or
b. any question, difference or dispute arises as to the rights or liabilities of either party; or
c. touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Employment and Labour Relations Court.
(2) No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection (1).
(3) This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.
In this petition, the petitioner contends that the 1 st respondent’s conduct as a public officer employed by the 4 th respondent affects 1 st respondent ability to make good judgments and work diligently. Clearly, the substratum of the Petition rests on the 1 st Respondent employment with the 4 th Respondent.
In the landmark decision of Republic vs Karisa Chengo & 2 others (Petition 5 of 2015) [2017]KESC15 (KLR0 , the Supreme Court clarified the jurisdiction of Special Courts under Article 162 vis-à-vis the High Court held as follows:
“[50] It is against the above background, that Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. … The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.”
[51] Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions…”
The Court went on to further state:
“…[52] … As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”
Considering that the gist of this Petition centers around the conduct of the 1 st Respondent as an employee of the 4 th Respondent, it follows that the Court with jurisdiction over this matter is the Employment and Labour Relations Court even assuming that the matter raises a constitutional question. Employment and Labour Relations Court has the jurisdiction to interpret the Constitution in matters falling within the scope of its jurisdiction. This was the holding of the Court of Appeal in Attorney General & 2 Others vs Okiya Omtata & 11 Others (2020) eKLR where the Court held thus:
“We have no doubt that the ELRC and ELC have jurisdiction to interpret and apply the Constitution as held by the High Court in United States International University v The Attorney General (2012) eKLR and this Court in Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR. However, the jurisdiction of those specialized courts to interpret and apply the Constitution is not original or unlimited like that of the High Court. It is limited to constitutional issues that arise in the context of disputes on employment and labour relations on environment and land matters…”
26. The applicants further referred to the case of Hezekiah Chepkwony& 2 Others vs Cabinet Secretary Ministry of Health & 2 Others [2020] eKLR which determined that:-
Unlike the private sector where terms of service are regulated purely by the contract of service between the parties involved, in the public sector the contract of service is regulated by both the contract of service signed between the parties in addition to the Human Resource Policies and Procedures Manual for the public Service and a mosaic of public law which includes the Constitution, statutes, subsidiary legislations, government circulars and legal notices among others.
27. The applicants referred to Section 59(f) of the Basic Education Act which provides that:-
The functions of the Board of Management of a basic education institution shall be to determine cases of pupils’ discipline and make reports to the County Education Board.
28. The applicants asserted that in the instant petition, while in pursuit of implementation of the immediate foregoing statutory contractual performance of investigation of involvement of students in sexual misconduct described by petitioners themselves as lesbianism, gay, bisexual and transgender admitted by students themselves and which sexual misconduct is contra-statute in terms of school rules and regulations; the respondents were themselves turned against and accused by the petitioners of engaging in misconduct in the course of the foregoing performance of their duties provided at Section 34(2) of the Teachers Service Commission Act as read with schedule 3.
29. Furthermore, Regulations 144 to 154 of the Teachers Service Commission Code of Regulations for Teachers provide for the procedure for reporting any misconduct by teachers and the disciplinary procedure including investigations, interdictions and punishment. Particularly Regulation 144(1) and 145(1) provide that:-
A person having any allegations of misconduct against a teacher may report the allegation to the Secretary Board of Management.
Any person with information that a teacher has engaged in professional misconduct or any conduct contravening these regulations may lodge a complaint in writing, clearly indicating the nature of the complaint.
30. The applicants submitted that the petitioners concealed from the court that the Teachers Service Commission had subjected them to three months suspension without pay as punishment with effect from 1 st February 2024 upon the commission carrying out investigations on the complaint and serving them with notice to show cause letters dated 16 th October 2023. Thus considering the gist of the petition centres around the conduct of the applicants as employees of the 2 nd interested party and the 1 st respondent, it follows the court with jurisdiction over the said matter is the Employment and Labour Relations Court.
31. On the second issue for determination, reliance was placed on the case of Jemmah vs Ngetich & 6 Others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E205 of 2024) [2025] KEHC 3444 (KLR) (Constitutional and Human Rights) (20 March 2025) (Ruling) where the court held:-
The doctrine was discussed by the Supreme Court in Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR where the Court observed thus:
“[51] Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism…”
Applying the same principle, the High Court in the case of Law Society of Kenya v Attorney General & Another; National Commission for Human Rights & Another (Interested Parties) (2020) eKLR held as follows:
“…Where the Constitution has reposed specific functions in an institution or organ of the State, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution…”
It follows therefore that in respect of violation relating to leadership and integrity provisions; such as allegations that the 1 st Respondent misconduct violates Chapter Six of the Constitution and the provisions of the Leadership and Integrity Act; the body that is charged with the responsibility of overseeing compliance with those provisions by public officer is in the first instance the Ethics and Anti-Corruption Commission in the light of the specific responsibility under Section 4 (2) & (3) of the Leadership and Integrity Act.
It was therefore premature for the Petitioner institute this Petition before giving the Ethics and Anti-Corruption Commission a chance to enquire into and ascertain the allegations against the 1 st Respondent.
This Court will not be rushed to intrude into matters that generally fall within the area of responsibility of other institutions or agencies of Government. There was haste in invoking the jurisdiction of this Court prematurely. The petition thus offends the doctrine of abstention.
32. Further reliance was placed on Regulation 156(1) and (8) of the Teachers Service Commission Code of Regulations which provides:-
There is established an adhoc Committee of the Commission known as Teachers Service Review Committee which shall consider and determine reviews arising from the discipline process under these regulations.
The Review Committee shall upon receiving an application for review, consider the application and may-
a) Uphold the decision and subsequently dismiss the application for review;
b) Allow the review and set aside the decision; or
c) Vary the decision on such terms as it may deem fit.
33. The applicants argued that if the petitioners were dissatisfied with the commission’s final decision of their punishment, they had the option of suing the employer, the Teachers Service Commission in the employment and labour relations court for damages or for review of its decision.
34. On the final issue of determination, reliance was placed in the decision of Elijah Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Alliance vs Mara Conservancy & 5 Others [2014] KEHC 4420 (KLR) where the court held that:-
However, for purposes of striking out a pleading under Order 2, rule 15, the word “scandalous” is not limited to the “indecent”, “offensive” and “the improper” and that the denial of a well known fact can also be rightly described as scandalous but may not be scandalous of the matter. J. B. MACHARIA VS. WANGECHI MWANGI & NATION NEWSPAPERS LTD (Nairobi Civil Appeal No. 179 of 1997). However scandalous is relevant and admissible in evidence in proof of the truth of the allegation in the plaint or defence so that when considering whether the matter is scandalous regard must be had to the nature of the action.
According to the authors of BULLEN & LEAKE & JACOBS PREDENTS OF PLEADING (12th Edn) – a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless and offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense.”
A matter is said to be “vexatious” when -
(i) it has no foundation, or
(ii) it has no chance of succeeding, or
(iii) the pleading (plaint or defence), is brought merely for the purpose of annoyance, or
(iv) it is brought so that the party's pleading should have some fanciful advantage, or
(v) where it can really lead to no possible good (per WILLIS VS. EARL BEAUCHAMP (1866) 11 PD 59).
A pleading is an abuse of the process where it is frivolous or vexatious or both; but where the pleading as it stands is not really embarrassing – it is wiser to leave it un-amended or to apply for further particulars – KEMSLEY VS. FOOT [1952] A.C. 325.
35. The applicants argued that the fact that the allegations are of criminal nature having been reported as assault to Parklands Police Station under Occurrence Book (OB) No. 44 on 23 rd June 2023 and obtaining a medical examination report, P3 Form and the failure of any charges preferred against them is a testament that the allegations are baseless and have no chance of success.
The Petitioners’/ Respondents’ Submissions.
36. The respondents list the issues for determination as whether this Honourable Court has jurisdiction to hear the matter ; whether the petition herein is scandalous, vexatious and an abuse of the court process and whether the application is merited . The respondents argued that the applicants’ arguments are basically based on two grounds that the instant dispute is labour related and that the 2 nd interested party having already undertaken disciplinary action against the applicants, their course of action is moot or fully canvassed .
37. The Petitioners/respondents submitted that the preamble to the Teachers Service Commission Act states that the Act serves to make further provision for the Teachers Service Commission established under Article 237 of the Constitution , its composition; functions and powers; the qualifications and procedure for appointment of members; and for connected purposes. The Act is primarily meant to provide for the creation and regulation of the 2 nd interested party in accordance with Articles 237 and 248(2)(i) of the Constitution and the relationship between the 2 nd interested party and registered teachers across the country. Sections 11 and 12 of the Act clearly indicate that the functions and powers of the 2 nd interested party relate to either the 2 nd interested party itself as well as teachers registered by the 2 nd interested party. Further Section 11 of the Act provides that the functions of the 2 nd interested party inter alia is to ensure that teachers comply with the teaching standards prescribed by the TSC under the Act ; manage payroll of teachers in its employment; facilitate career progression and professional development for teachers in the teaching service including the appointment of head teachers and principals; and monitor the conduct and performance of teachers in the teaching service.
38. The Petitioners/ respondents submitted that Part III of the TSC Act deals with the registration and Discipline of Teachers and Compliance with teaching standards. Article 237(2) of the Constitution provides that the functions of the 2 nd interested party are to register trained teachers; to recruit and employ registered teachers; to assign teachers employed by TSC for service in any public school or institution; to promote and transfer teachers; to exercise disciplinary control over teachers and to terminate the employment of teachers . Sections 33 and 34(3) of the TSC Act provides that the 2 nd interested party after interdicting a teacher is empowered to take disciplinary actions against a registered teacher, including by way of issuance of a warning letter, surcharging the teacher; suspending the teacher for such period not exceeding six months; cancelling a registration certificate and removing the n
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