Florence Wanjiru Mutua v BOM Pentecostal Nursery School & another

JUDGMENT 1. The Petitioner, Florence Wanjiru Mutua, instituted the present proceedings by way of a Petition dated 13 th March 2026, alleging that the Respondents violated her constitutional right to freedom of conscience, religion, belief and opinion by requiring her to join the Respondents’ church as a condition for teaching remedial classes. She further alleges that the Respondents discriminated against her on account of her religion, conscience and belief. 2. The Petition is supported by the Affidavit sworn by the Petitioner on 13 th March 2026. She deposes that she was employed by the Respondents as an Early Childhood Development Education (ECDE) teacher with effect from 1 st September 2014. 3. The Petitioner avers that she diligently discharged her duties and, from time to time, participated in remedial and tuition classes conducted during weekends and school holidays. She states that the remuneration for such classes was paid separately from her monthly salary. 2

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4. According to the Petitioner, she was initially assigned remedial classes but was subsequently informed by the 2nd Respondent that the classes were reserved for teachers who professed the Respondents’ faith. 5. The Petitioner further avers that on 13th July 2023, the Director of the 1st Respondent, Bishop Muteru, informed her that she should consider joining the Respondents’ church if she wished to continue teaching remedial and tuition classes. She avers that she declined to join the Respondents’ church and that as a consequence, she was excluded from teaching the remedial and tuition classes and thereby deprived of the benefits accruing therefrom. 6. She further avers that three teachers who professed the Respondents’ faith were permitted to teach the remedial and tuition classes. 7. The Petitioner additionally contends that the Respondents failed to remit her NSSF and NHIF contributions. She alleges that teachers who professed the Respondents’ faith enjoyed full statutory remittances, whereas she was excluded from the same. 8. The Petitioner states that on 4th November 2023, the 2nd Respondent issued her with a suspension letter, which according to her, effectively terminated her 3

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employment while granting her an option to reapply for employment after six months. 9. She contends that prior to the termination of her employment, she was neither invited to a disciplinary hearing nor accorded an opportunity to be heard or to defend herself against the allegations made against her. 10.The Petitioner states that she subsequently instituted proceedings before the Magistrates’ Employment and Labour Relations Court at Nyeri in MCELRC/E101/2023. That in a judgment delivered on 5 th December 2024, the Court found that her termination was unfair and unlawful and awarded her compensation in the sum of Kshs. 253,500, together with costs and interest. The Court also found that the Respondents had discriminated against her on account of her religion. However, the Court observed that it lacked jurisdiction to grant remedies for alleged violations of constitutional rights, including exemplary damages arising from the alleged discrimination. 11.It is on the foregoing basis that the Petitioner seeks the following reliefs: a) A declaration that the Respondents violated her rights under Articles 27, 28, 32 and 41 of the Constitution. b) A declaration that the Petitioner’s termination was in violation of Sections 45 and 46 of the Employment Act and therefore unfair. 4

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c) A declaration that the Petitioner is entitled to be compensated for: i. Loss incurred as a consequence of violation of her constitutional rights. ii. Violation of her constitutional rights as envisaged under Articles 23(3) and 41(1) of the Constitution. iii. Injury of the petitioner on account of the Respondent’s breaches. d) An order that the Petitioner be compensated as follows: i. Exemplary damages of Kshs 5,000,000/= e) Costs of the Petition. f) Any other relief as the Court may deem fit. 12.The Respondents opposed the Petition through a joint Replying Affidavit sworn on 10th April 2026 by Faith Wanjiru David, the Principal of Pentecostal Nursery School. 13.Ms. Wanjiru deposes that the Petitioner was not a formal employee of Pentecostal Nursery School and was never employed by the school as an ECDE teacher. She further contends that there was no contract of employment between the Petitioner and the 1st Respondent. 5

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14.She further avers that Pentecostal Nursery School does not offer remedial or tuition classes, as such programmes would contravene Government regulations. She adds that any remedial or tuition arrangements that may have existed were private arrangements between individual parents or guardians and teachers and were neither official nor sanctioned by the 1st Respondent. 15.Ms. Wanjiru denies that the school discriminates against persons on the basis of their religious beliefs or affiliations. She states that the school’s by-laws are intended to govern school operations, ensure safety, manage discipline and ensure compliance with the guidelines issued by the Ministry of Education pursuant to the Basic Education Act. 16.According to Ms. Wanjiru, the Petitioner began antagonizing other teachers and creating disunity and discord within the school community. Consequently, her engagement as a casual assistant teacher was suspended for a period of six months, with an option to reapply thereafter. She maintains that the suspension did not amount to termination or dismissal from employment. 17.Ms. Wanjiru further avers that, prior to her suspension, the Petitioner was invited to show cause why disciplinary action should not be taken against her. 6

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She contends that the Petitioner failed to provide a reasonable explanation, thereby leading to the decision to suspend her engagement. 18.Ms. Wanjiru additionally contends that the Petitioner previously instituted proceedings before the Magistrates’ Employment and Labour Relations Court at Nyeri in MCELRC/E101/2023, Florence Wanjiru Mutua v BOM Pentecostal Nursery School & another, which proceedings were heard and finally determined. She consequently maintains that the present Petition is barred by the doctrine of res judicata. 19.It is Ms. Wanjiru’s further deposition that the Petitioner was fully compensated pursuant to the judgment in the earlier proceedings and cannot properly return to Court through the present Petition seeking additional compensation arising from the same circumstances. She therefore characterizes the present Petition as frivolous, vexatious and an abuse of the process of the Court. Submissions 20.The Petition was canvassed by way of written submissions. It was submitted on behalf of the Petitioner that the Respondent’s conduct amounted to a clear violation of her constitutional rights to equality and freedom from discrimination, human dignity and freedom of conscience, religion and belief as 7

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guaranteed under Articles 27, 28 and 32 of the Constitution of Kenya, 2010. In support of the Petitioner’s submission, reliance was placed on the case of Seventh Day Adventist Church (East Africa) Ltd v Minister for Education & 3 others (Civil Appeal 172 of 2014) [2017] KECA 751 (KLR) (3 March 2017) (Judgment. 21.The Petitioner further submitted that she was expressly afforded time to consider joining the Respondent’s church as a condition for continuing to teach remedial and tuition classes. She contended that, upon declining to change her religion, she was thereafter completely excluded from teaching such classes. 22.It was the Petitioner’s further submission that the Respondent openly adopted and implemented a policy that restricted employment to Christians, thereby excluding persons of other faiths from equal access to employment opportunities. In support of this position, the Petitioner referenced the Respondent’s By-Law No. 3. 23.According to the Petitioner, the Respondent’s bylaws amount to a formal and deliberate policy of religious preference. In the Petitioner’s view, the alleged discrimination was neither incidental nor inadvertent, but was embedded in the Respondent’s governing framework. 8

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24.On the Respondents’ part, it was submitted that they would not, in the first instance, have employed the Petitioner if they discriminated against teachers on the basis of their religious affiliation or beliefs. In this regard, the Respondents contended that there was no evidence to establish discrimination against the Petitioner on grounds of religion or belief, or any violation of Article 32 of the Constitution of Kenya, 2010. 25.The Respondents further submitted that the Petitioner had failed to plead with sufficient particularity or otherwise demonstrate how her rights under the constitutional provisions relied upon had been violated. In support of the Respondents’ submission, reliance was placed on the case of Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979) [1979] KEHC 30 (KLR) (Crim) (29 January 1979) (Judgment). 26.Without prejudice to the foregoing, the Respondents further submitted that the instant Petition offends the doctrine of res judicata, contending that the Petitioner had previously instituted a similar claim in Nyeri MCELRC/E101/203; Florence Wanjiru v BOM Pentecostal Nursery School & another. According to the Respondents, the said claim was heard and conclusively determined when judgment was delivered on 5th December 2024. To buttress the Respondents' submission, reference was made to the cases of 9

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Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) and John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR). 27.In the same vein, the Respondents posited that, if dissatisfied with the judgment of the Trial Court, the Petitioner ought to have pursued an appeal before this Honourable Court rather than instituting a fresh claim couched in the form of a constitutional Petition. Analysis and Determination 28.Having considered the Petition, the Respondents’ Replying Affidavit and the rival submissions, the Court has distilled the following issues for determination: a) Whether the Petition is barred by the doctrine of res judicata; and b) Subject to the determination of (a), whether the Petitioner’s constitutional rights have been violated. Res judicata? 29.The Respondents contend that the Petition herein is barred by the doctrine of res judicata, on the ground that the Petitioner had previously instituted proceedings before the Magistrates’ Employment and Labour Relations Court at Nyeri in MCELRC/E101/2023, Florence Wanjiru Mutua v BOM Pentecostal 10

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Nursery School & another, which was heard and finally determined, with the Petitioner being awarded compensation. 30.The Petitioner acknowledges that she had previously instituted proceedings before the Magistrates’ Court, which found that the termination of her employment was unfair and unlawful and awarded her compensation. She, however, contends that the Court expressly found that it lacked jurisdiction to grant remedies for alleged violations of her constitutional rights, including exemplary damages arising from discrimination. 31.Consequently, she posits that she is entitled to pursue such reliefs before this Court, which is vested with jurisdiction under Article 162 (2) (a) of the Constitution to grant appropriate remedies for violations of fundamental rights and freedoms arising in the context of employment. 32.The question that therefore falls for determination is whether, in the circumstances, the present Petition is barred by the doctrine of res judicata. 33.The doctrine of res judicata is principally intended to prevent multiplicity of suits, safeguard the finality of litigation and protect parties from being vexed repeatedly over matters that have already been judicially determined. The 11

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doctrine is codified under Section 7 of the Civil Procedure Act, which provides as follows: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 34.On this issue, the Court of Appeal, in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) held as follows: [F] or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. 12

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d) The issue was heard and finally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 35.Flowing from the foregoing, it is apparent that for the doctrine of res judicata to apply, the following elements must be established: i. a previous suit in which the matter was in issue; ii. the parties were the same or litigating under the same title; iii. a competent court heard the matter in issue; and iv. the issue has been raised once again in a fresh suit. 36.It is not in dispute that there were previous proceedings between the same parties at the magistrate’s court in which the matters forming the basis of the present Petition were raised. The parties therefore litigated under the same title in Nyeri MCELRC/E101/2023, Florence Wanjiru Mutua v BOM Pentecostal Nursery School & another. 37.In the Court’s respectful view, the Petition herein satisfies the essential elements of the doctrine of res judicata as set out above. The only 13

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distinguishing feature relied upon by the Petitioner is that the Magistrates’ Court did not grant the exemplary damages sought, having found that it lacked jurisdiction to award such relief. 38.Granted, pursuant to Section 8(3) of the Magistrates’ Courts Act, a Magistrates’ Court lacks jurisdiction to award compensation for loss or damage arising from the violation of a right or fundamental freedom in the Bill of Rights. However, that limitation does not, in the circumstances of this case, entitle the Petitioner to fragment her cause of action and pursue before this Court matters arising from the same set of facts after having subjected them to adjudication before the Magistrates’ Court. 39.Indeed, Article 162(2)(a) of the Constitution vests this Court with exclusive original jurisdiction to hear and determine disputes relating to employment and labour relations, irrespective of the pecuniary value of the claim. 40.To this end, the Petitioner was at liberty to institute her claim before this Court in the first instance and to raise therein all matters arising from the employment relationship, including any alleged violations of her constitutional rights and the remedies consequential thereto. 14

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41.Having elected to litigate the dispute before the Magistrates’ Court, she cannot subsequently return to this Court to relitigate the same dispute or pursue additional reliefs arising from the same cause of action. To permit such a course would amount to litigating by instalments and would undermine the principle of finality in litigation. 42.This Court therefore finds that the matters raised in the previous proceedings before the Magistrates’ Court, as well as matters which properly belonged to the same cause of action and ought reasonably to have been raised therein, fall within the scope of the doctrine of res judicata. The constitutional character of the reliefs now sought does not, in the circumstances, provide a basis for reopening the dispute or circumventing the final determination rendered in the earlier proceedings. 43.Accordingly, the Court finds that the present Petition substantially mirrors the erstwhile proceedings before the Magistrates’ Court and is, in all material respects, barred by the doctrine of res judicata. 44.Consequently, the Petition dated 13th March 2026 is hereby dismissed with costs. DATED, SIGNED and DELIVERED at Nyeri this 25th day of September 2026. 15

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……………………………… STELLA RUTTO JUDGE In the presence of: No appearance for the Petitioner Mr. Makura for the Respondents Ndati Court Assistant ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective 16

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which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 17

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