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ELRCDismissedELR Cause No.6 of 2020 (application dated 19th October, 2020)

Ruth Muthoni Mwangi v Kenya Meat Commission [2020] KEELRC 8 (KLR)

Employment and Labour Relations Court
22 December 2020
1,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A case filed in the wrong Kenyan court cannot simply be moved to the right one — the wrong court must first declare it invalid.

What this practically means

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Executive summary

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The applicant, formerly employed by the Kenya Meat Commission as an Accounts Assistant, was interdicted in June 2015 following criminal charges at the Anti-Corruption Court. She filed ELR Cause No.6 of 2020 at the Machakos Chief Magistrate's Court challenging a backdated letter of summary dismissal dated 26th June, 2015. The respondent filed preliminary objections dated 28th September, 2020 contending that the cause of action arose at Athi River, that the Machakos court lacked geographical jurisdiction, and that the cause was incompetent contrary to section 90 of the Employment Act. Rather than await the ruling on those objections, the applicant, on the advice of registry staff, filed the present application seeking transfer of the suit to Mavoko Law Courts. The respondent opposed, arguing forum shopping, abuse of process, and that a suit filed without jurisdiction is a nullity incapable of transfer. The court identified a single issue: whether the transfer should be ordered. Applying Boniface Waweru Mbiyu v Mary Njeri, which endorses Kagenyi v Musiramo, the court held that a matter filed before a court lacking jurisdiction is incompetent, void and a nullity, with no capacity to be transferred; the court before which it is first brought must declare its status. The court further held that the Machakos court must be allowed to determine the pending preliminary objections on their merits, and that the transfer application subverted the rule of law. The application dated 19th October, 2020 was dismissed as an abuse of court process, with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should issue an order to transfer ELR Cause No.6 of 2020 from Machakos Chief Magistrate's Court to Mavoko Law Courts

Key legal issues

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Whether a suit filed in a court without geographical jurisdiction can be transferred to the correct court

Holding

No. A suit filed before a court lacking jurisdiction is a nullity with no capacity to be transferred; the court before which it is filed must declare it a nullity.

Reasoning

Relying on Boniface Waweru Mbiyu v Mary Njeri, the court held that filing before a court without jurisdiction is a fundamental professional error not excusable as ordinary counsel mistake, potentially giving rise to a tort claim against the advocate. The matter is incompetent and void and cannot be transferred. The proper course was for the Machakos court to determine the pending preliminary objections on the merits.

p. 2
02

Whether the transfer application was an abuse of court process

Holding

Yes. It was filed to circumvent the preliminary objections pending before the Machakos Magistrates Court.

Reasoning

The respondent had filed preliminary objections challenging the geographical jurisdiction of the Machakos court and compliance with section 90 of the Employment Act. The Machakos court had to be allowed to address those objections and make its own independent ruling; allowing transfer would subvert the rule of law and not achieve the ends of justice.

p. 2

Legal principles established

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  • A suit filed before a court lacking jurisdiction is a nullity, incompetent and void, and cannot be transferred to another court; the court before which it is first brought must declare its status as a nullity
  • A party cannot circumvent preliminary objections on jurisdiction pending before a court by seeking transfer of the file on the advice of registry staff

Court orders

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  1. 1.Application dated 19th October, 2020 dismissed as an abuse of court process
  2. 2.Costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations causes; transfer application under the court's procedure following the Chief Justice's Legal Notice No.6024 of 10th June, 2018 appointing Special Magistrates

Relief refused

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Transfer of ELR Cause No.6 of 2020 from Machakos Chief Magistrate's Court to Mavoko Law Court

The application circumvented the preliminary objections pending before the Machakos court and a suit filed in a court lacking jurisdiction is a nullity incapable of transfer

p. 2

Costs

Costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, application dated 19th October, 2020 is found in abuse of court process and is hereby dismissed. Costs to the respondent.
p. 2Final orders - dismissal with costs
It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court.
p. 2Nullity of suits filed without jurisdiction
The applicant cannot circumvent such procedure by filing the instant application seeking to have the matter transferred to Mavoko Law Court upon the advice of staff at the Registry as to do so would be subverting the rule of law.
p. 2Abuse of process / circumvention of preliminary objections

Issues in the judgment

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minor

The judgment inconsistently refers to the cause as ELR Cause No.6 of 2020 and ELC Cause No.6 of 2020

minor

The judgment gives conflicting chronology: employment stated as commencing 13th December, 2017 yet interdiction letter dated 26th June, 2015 and dismissal from that date

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, "Ruth Muthoni Mwangi v Kenya Meat Commission [2020] KEELRC 8 (KLR)", Case Analysis (2020). ELR Cause No.6 of 2020 (application dated 19th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/8/eng@2020-12-22

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