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Court of AppealAllowedCivil Appeal 141 of 2008· [2010] KECA 238 (KLR)

TIMSALES KENYA LIMITED v RONALD NGALA OMUKA [2010] KECA 238 (KLR)

Court of Appeal of Kenya
30 April 2010
ALALI-ARONI
971 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot sue for a workplace injury in a town with no link to the injury or the employer — the whole suit was struck out.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu by Timsales Kenya Limited against a portion of a ruling and order of the learned Principal Magistrate Mrs. On'ginjo delivered on 27 November 2008 in CMCC No.474 of 2006. The magistrate had stayed the proceedings pending filing of the suit in Nakuru, while awarding the defendants costs. The appellant's grounds included that the magistrate had failed to appreciate that the orders sought were for striking out, and that it was untenable to stay the suit in its entirety while awarding costs. The respondent countered that the appellant had admitted the court's jurisdiction in its defence. The court framed three issues: territorial jurisdiction of the Kisumu court, the power to stay proceedings, and whether the suit should be struck out in its entirety. Applying sections 11 and 14 of the Civil Procedure Act, the court held that a suit for compensation for a personal wrong may, at the plaintiff's option, be filed where the wrong occurred or where the defendant resides or carries on business; since the injuries were sustained at the appellant's factory in Elbergon and the appellant was based in Narok, the Kisumu court lacked territorial jurisdiction. Following Aden & Another v Ulinzi Sacco Society Limited [2002] 1 KLR, the court held that a court without jurisdiction cannot transfer or stay an incompetent suit, that jurisdiction cannot be conferred by consent, acquiescence or pleading, and that jurisdiction may be raised even on appeal. The appeal succeeded, the plaint was struck off with costs, and the costs of the appeal were awarded to the appellant.

Key legal issues

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01

Territorial jurisdiction of the Kisumu court over a workplace-injury claim

Holding

The Chief Magistrate's Court at Kisumu lacked territorial jurisdiction; the plaintiff could only file the suit in Nakuru where the defendant's relevant activities and the wrong were located.

Reasoning

Applying sections 11 and 14 of the Civil Procedure Act, a suit for compensation for a personal wrong may be filed where the wrong occurred or where the defendant resides or carries on business, at the plaintiff's option. The injuries were sustained at the appellant's factory in Elbergon and the appellant is a limited company based in Narok; neither option lay in Kisumu, so the Kisumu suit was incompetent.

p. 2
02

Power of a court lacking jurisdiction to stay rather than strike out proceedings

Holding

A court without jurisdiction has no power to stay an incompetent suit or transfer it; the learned Principal Magistrate ought not to have stayed the incompetent suit.

Reasoning

Relying on Aden & Another v Ulinzi Sacco Society Limited, the court restated that jurisdiction either exists or does not; it cannot be conferred by consent or acquiescence, and where a cause is filed without jurisdiction there is no power to transfer it. Staying an incompetent suit was a nullity since the suit was incapable of being transferred.

p. 3
03

Whether jurisdiction could be conferred by the appellant's defence

Holding

The respondent's argument that the appellant had accepted jurisdiction in its defence does not confer jurisdiction.

Reasoning

The Aden v Ulinzi authority holds that jurisdiction cannot be conferred by consent of the parties or assumed on the ground that parties have acquiesced in actions presuming its existence; consequently the issue of jurisdiction was properly raised on appeal notwithstanding the defence.

p. 3

Legal principles established

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  • A suit for compensation for personal wrong may be instituted, at the plaintiff's option, either where the wrong was done or where the defendant resides or carries on business - here only Nakuru, not Kisumu, was competent.
  • Where a cause is filed in a court without jurisdiction, that court has no power to transfer or stay it; the suit is incompetent and jurisdiction cannot be cured by consent, acquiescence or pleading.
  • Jurisdiction may be raised at any stage of the proceedings, even on appeal.

Court orders

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  1. 1.The plaint in CMCC No.474 of 2006 is struck off with costs
  2. 2.The costs of the appeal are awarded to the appellant

Authorities

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Legislation

  • Civil Procedure ActSection 11
  • Civil Procedure ActSection 14

Cases cited (1)

  • ADEN AND ANOTHER VERSUS ULINZI SACCO SOCIETY LIMITED
    [2002] 1 KLR
On appeal from
Principal Magistrate's Court, Kisumu
C.M.C.C. No. 474 of 2006
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over an appeal from a portion of a ruling and order of the Principal Magistrate's Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TIMSALES KENYA LIMITED v RONALD NGALA OMUKA [2010] KECA 238 (KLR)", Case Analysis (2010). Civil Appeal 141 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/238/eng@2010-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.