Samuel Gathuku Kimori v Total Kenya Limited [2015] KEELRC 434 (KLR)
The bottom line
#The Employment Court refused to transfer a decade-old employment case from the Magistrates' Court, ruling the applicant's five-year unexplained delay made transfer pointless.
What this practically means
#Executive summary
#Key legal issues
#Competence of invoking the Civil Procedure Act and Rules in the Employment & Labour Relations Court
The invocation is not incompetent; the Court may use those provisions to fill lacunae, distinguishing Rika J.'s decision in James Davies Njuguna v Simon Mithamo & 3 Others.
The Court held that although employment matters have their own procedure, the ELRC may resort to the Civil Procedure Act and Rules where its rules are silent. The authority relied on by the Respondent was distinguishable on its facts, so the Applicant's reliance on Order 51 Rule 1 and Section 3A did not render the application anathema to this Court's procedure.
Whether the pending Magistrates' Court suit should be transferred to the ELRC
The application was dismissed; the Magistrates' Court should hear and conclude the matter, applying the Fifth Schedule to the Constitution and Yaya v KRA.
The Court noted the Fifth Schedule to the Constitution provides that pending judicial proceedings continue before the same or a corresponding court, and there is no provision in the new labour laws for taking over pending matters. Delay of five years since the last magistrates' court appearance, with no explanation, meant transfer would make no sense and best course was to let the magistrates' court conclude the suit.
Effect of delay (laches) on the transfer application
The unexplained five-year delay since the magistrate's 2010 direction defeated the application.
The suit was last before a magistrate in 2010, roughly five years before the application. The Court found no reason why a transfer attempt was not made then, and held that transferring now made no sense, supporting dismissal with no order as to costs between the parties.
Legal principles established
#- The Employment & Labour Relations Court may have recourse to the Civil Procedure Act and Rules where there is lacuna in its own rules.
- Under the Fifth Schedule to the Constitution, pending judicial proceedings continue before the same or a corresponding court, and there is no provision in the new labour laws for transfer of pending matters.
Court orders
#- 1.The Applicant's application dated 16th March 2015 is dismissed
- 2.Each party to bear their own costs
- 3.The Magistrates Court seized of CMCC 5675 of 2005 to hear and conclude the matter now pending before it
- Jurisdiction invoked
- Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (invoked by the Applicant; the Court held it may have recourse to these provisions to fill lacunae)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Gathuku Kimori v Total Kenya Limited [2015] KEELRC 434 (KLR)", Case Analysis (2015). Application dated 16th March 2015 (seeking transfer of CMCC 5675 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/434/eng@2015-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.