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ELRCAllowedMiscellaneous Application (ELRC, Nairobi) re: transfer of Milimani CMEL No. 504 of 2019· [2020] KEELRC 703 (KLR)

Enos Ambogo v Sameer Agriculture & Livestock Limited [2020] KEELRC 703 (KLR)

Employment and Labour Relations Court of Kenya
9 July 2020
HWHellen Wasilwa
1,329 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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Kenya's Employment Court confirmed a lawsuit filed in the wrong court can be transferred rather than thrown out, protecting workers from starting over.

What this practically means

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Executive summary

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The Applicant, Enos Ambogo, moved the Employment and Labour Relations Court by Notice of Motion dated 17 February 2020 seeking transfer of his suit, Milimani CMEL No. 504 of 2019, against Sameer Agriculture & Livestock Limited from the magistrates' court to the ELRC. He explained that the claim had been filed in the lower court on the advice of the civil registry, but his advocate subsequently recognised the want of jurisdiction, and that failure to transfer would occasion injustice because his terminal dues claim could become time-barred if he had to file afresh. The Respondent opposed through the Replying Affidavit of Maina Karanja, arguing that a suit filed in a court devoid of jurisdiction was 'dead upon arrival', that no competent suit existed to transfer, and that the proper remedy was dismissal with costs. The court considered Section 18(1)(b) of the Civil Procedure Act and the line of authority beginning with Kagenyi v Musiramo, which bars transfer where the suit was initially filed in a court lacking jurisdiction. However, relying on the departure from that principle by Waweru J in Alal Ochieng, and echoed in Wycliffe Mwangaza v Grainbulk Handlers Limited, the court held that transfer of suits is essentially a procedural issue and that the overriding objective in Sections 1A and 1B of the Civil Procedure Act favours forwarding a misplaced suit to the competent court. Finding no prejudice to either party, the court allowed the application, directed the transfer of CMEL Milimani Case No. 504/2019 to the ELRC Nairobi, and made costs in the cause.

Key legal issues

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01

Power to transfer a suit filed in a court without jurisdiction

Holding

The court adopted the departure from Kagenyi v Musiramo taken by Waweru J in Alal Ochieng, holding that under the overriding objective (Sections 1A and 1B of the Civil Procedure Act) a suit filed in a wrong court should be transferred to the competent court rather than struck out.

Reasoning

The court traced Section 18(1)(b) of the Civil Procedure Act empowering the High Court to withdraw and transfer suits pending in subordinate courts. While Kagenyi v Musiramo held that transfer presupposes initial filing in a court with jurisdiction, the court preferred the line of authority in Alal Ochieng and Wycliffe Mwangaza treating transfer as procedural and applying the overriding objective. It found no prejudice to either party and allowed the transfer.

p. 2

Legal principles established

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  • Transfer of suits from one court to another is essentially a procedural issue, and a suit filed in a court without jurisdiction may be forwarded to the appropriate court with jurisdiction in the interest of justice
  • The overriding objective of the Civil Procedure Act favours transfer to the competent court rather than dismissal for want of jurisdiction

Court orders

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  1. 1.Milimani CMEL Case No. 504/2019 (Enos Ambogo v Sameer Agriculture & Livestock Limited) transferred to the Employment and Labour Relations Court Nairobi for hearing and disposal
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Uganda Civil Procedure ActSection 18

Cases cited (4)

  • Kagenyi vs Musiraamo & Another
    (1968) E.A 43
  • Rob De Jong & Another vs Charles Mureithi Wachira
    (2012) eKLR
  • Alal Ochieng & Another vs Moses Maina and Another
    (2007) eKLR
  • Wycliffe Mwangaza vs Grainbulk Handlers Limited
    Miscellaneous Civil Application 159 of 2013 (Mombasa)
Jurisdiction invoked
Section 18(1)(b) of the Civil Procedure Act (2010) - High Court power to withdraw and transfer suits pending in subordinate courts, exercised in the ELRC

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, "Enos Ambogo v Sameer Agriculture & Livestock Limited [2020] KEELRC 703 (KLR)", Case Analysis (2020). Miscellaneous Application (ELRC, Nairobi) re: transfer of Milimani CMEL No. 504 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/703/eng@2020-07-09

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