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ELRCDismissedNot stated in the judgment· [2015] KEELRC 71 (KLR)

Mary Mweu v Chairman B.O.G. Misyani Girls Secondary School & 2 others [2015] KEELRC 71 (KLR)

Employment and Labour Relations Court
16 December 2015
793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to strike out a transferred employment suit, ruling that a technical flaw in how it was moved to court cannot block a fair hearing.

What this practically means

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Executive summary

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This is a ruling on a Notice of Preliminary Objection dated 10th November 2015 in the Employment and Labour Relations Court, in which the Respondent sought to have the suit struck out with costs. The Respondent argued that the suit was first filed in the Machakos Chief Magistrate's Court (Civil Suit No. 457 of 2008) on 6th May 2008, a court without jurisdiction under Sections 87(1) and (2) of the Employment Act and Section 12(1) of the Labour Institutions Act 2007, which vested exclusive jurisdiction in the Industrial Court; that the Magistrate's Court ruled on 20th June 2013 that it had no jurisdiction; and that a subsequent order of the High Court at Machakos (Misc. Civil Application No. 242 of 2013) transferring the suit to the Employment and Labour Relations Court could not validate an invalid suit. The Claimant opposed, contending that the suit was filed before the Employment Act and Labour Institutions Act commenced on 2nd June 2008, so it could not have been filed in a court that was not then operational, and that she duly sought transfer once the new statutes came into force. Justice Hellen Wasilwa noted the claim was first filed in 2008, before the current Employment and Labour Relations Court was established, and that although it was not prudent to file the transfer application in the High Court given that the ELRC had been established in July 2012, the transfer order was not incompetent on that technicality alone. Exercising her discretion in the interest of justice and disregarding undue technicalities, the court dismissed the preliminary objection, allowed the suit to proceed to hearing, and ordered costs in the course.

Key legal issues

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Whether the suit, originally filed in the Chief Magistrate's Court before the Industrial Court's exclusive jurisdiction under the Employment Act and Labour Institutions Act 2007 came into force, was invalid at inception and could not be transferred to the Employment and Labour Relations Court

Holding

The preliminary objection was dismissed; the court exercised its discretion to allow the suit, holding the transfer order valid notwithstanding the technicality that the transfer application was made in the High Court rather than the Employment and Labour Relations Court

Reasoning

The suit was first filed in 2008, before the current Employment and Labour Relations Court was established, so it could not initially have been filed in a court that did not exist. Although the Claimant's transfer application was made in the High Court at Machakos when the Employment and Labour Relations Court was already established in July 2012 — which the court found not prudent — the transfer order was not incompetent on that technicality alone. The court invoked its duty to do justice irrespective of undue technicalities and admitted the suit, dismissing the objection.

p. 2

Legal principles established

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  • A transferred suit is not invalidated merely by a technicality in the procedural route of the transfer application, as the court's overriding duty is to do justice without undue regard to technicalities

Court orders

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  1. 1.The preliminary objection dated 10th November 2015 is dismissed as having no merit
  2. 2.The suit, having already been admitted, remains admitted and is to be set down for hearing
  3. 3.Costs in the course

Authorities

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Legislation

  • Employment ActSection 87(1) and 87(2)
  • Labour Institutions Act 2007Section 12(1)
Jurisdiction invoked
Exclusive jurisdiction of the Industrial Court under Section 87(1) and (2) of the Employment Act and Section 12(1) of the Labour Institutions Act 2007, considered in determining whether the transferred suit is properly before the 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, "Mary Mweu v Chairman B.O.G. Misyani Girls Secondary School & 2 others [2015] KEELRC 71 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/71/eng@2015-12-16

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