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ELRCDismissedNotice of Motion Application dated 6th July, 2020 (ELRC at Nairobi)· [2020] KEELRC 523 (KLR)

John Gitonga Njeru v Teachers Service Commission County Director Tharaka Nithi & another [2020] KEELRC 523 (KLR)

Employment and Labour Relations Court
20 August 2020
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A teacher's bid to move his case to Nairobi and stop his dismissal failed because Nairobi was the wrong court and he had already been fired.

What this practically means

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Executive summary

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The Applicant, a teacher earning Kshs. 141,607 per month due to retire on 31st August 2020, filed a Notice of Motion under Sections 3A and 18(1)(b) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking transfer of Meru CMC-ELRC Cause No. 5 of 2020 to the Employment and Labour Relations Court at Nairobi on the ground that the Chief Magistrate's Court lacked pecuniary jurisdiction, and an order restraining the Teachers Service Commission from terminating his services on the basis that no compulsory retirement notice had been issued under Rule 161(3) of the TSC Code of Regulations. The Respondents opposed, arguing the application was sub judice, unprocedural, an abuse of process, and overtaken by events since the Applicant had already been dismissed on 7/7/2020 following disciplinary proceedings over alleged sexual harassment of a student. The Respondents relied on Fidelity Bank Limited v John Joel Kanyali and Satya Bhama Gandhi. The court found that although the Applicant was not opposed to transfer in principle, Nairobi was not a viable destination; the proper court, if transfer were warranted, would be the Nyeri ELRC where the cause of action arose. The court also found nothing to stay as the Applicant had already been dismissed. The application was dismissed on 20th August 2020.

Key legal issues

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01

Destination of transfer of a suit beyond the magistrates' court's pecuniary jurisdiction

Holding

The application to transfer to Nairobi was dismissed; the proper court would have been the Nyeri ELRC

Reasoning

The court noted that although the Meru Chief Magistrate's Court lacked monetary jurisdiction over a claimant earning Kshs. 141,607 per month given Gazette Notice No. 6024 of 2018 limiting jurisdiction to claims not exceeding Kshs. 80,000, transfer to Nairobi was not viable. Nairobi was neither where the cause of action arose nor the convenient forum; the Nyeri ELRC covers Tharaka Nithi where the cause of action arose.

p. 3
02

Effect of intervening termination of employment on interlocutory restraint

Holding

The prayer to restrain termination was overtaken by events as the Applicant had already been dismissed on 7/7/2020

Reasoning

The court observed that the Respondents contended the Applicant had been dismissed from service on 7/7/2020 following a disciplinary process, and that the Applicant did not deny this fact. With termination already effected, an order restraining termination could no longer issue since there was nothing left to stay.

p. 3

Legal principles established

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  • Where a suit is to be transferred for want of pecuniary jurisdiction of the magistrates' court, the appropriate destination is the Employment and Labour Relations Court within whose jurisdiction the cause of action arose

Court orders

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  1. 1.The application is dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Constitution of Kenya, 2010Article 47
  • Teachers Service Commission Code of Regulations for Teachers, 2015Rule 161(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Section 4

Cases cited (2)

  • Fidelity Bank Limited Vs John Joel Kanyali
    (2014) eKLR
  • Satya Bhama Gandhi Vs Director of Public Prosecutions & 3 Others
    (2018) eKLR
Jurisdiction invoked
Sections 3A and 18(1)(b) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "John Gitonga Njeru v Teachers Service Commission County Director Tharaka Nithi & another [2020] KEELRC 523 (KLR)", Case Analysis (2020). Notice of Motion Application dated 6th July, 2020 (ELRC at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/523/eng@2020-08-20

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