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ELRCAllowedNot stated in judgment (notice of motion dated 7th January 2020)· [2020] KEELRC 838 (KLR)

Kisii County Government & another v Jackson Moindi Ontegi [2020] KEELRC 838 (KLR)

Employment and Labour Relations Court of Kenya
25 June 2020
MNMathew N. Nduma
1,023 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 confirmed it can hear work injury appeals from magistrates' courts and gave an appellant a second chance after filing in the wrong court.

What this practically means

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Nairobi on a notice of motion by Kennedy Chweya Onsembe seeking leave to appeal out of time against a judgment of the Nyamira Chief Magistrate, Hon. M. O. Wambani, delivered on 20th August 2019 awarding the Plaintiff/Respondent Ksh. 5,305,500 plus costs and interest, and seeking stay of execution pending appeal. The applicant had initially filed his memorandum of appeal in the High Court at Nyamira (HCCA No. 51 of 2019), where Justice E. N. Maina struck it out on 19th December 2019 for want of jurisdiction. The respondent filed a preliminary objection contending that the ELRC lacked jurisdiction under Article 162(2)(a) and (3) of the Constitution and sections 3 and 12 of the ELRC Act. The court, Mathew N. Nduma J, rejected the objection, holding that the subject matter was a work injury and employment matter within the ELRC's jurisdiction, including appeals from magistrates' courts. Applying the Court of Appeal decision in Prof. Daniel N. Mugendi v Kenyatta University, the court held that filing in the wrong court should not defeat the appeal. Finding an arguable appeal and no irremediable prejudice to the respondent, the court granted leave to appeal out of time, deemed the draft notice of appeal duly filed subject to payment of fees, and granted stay of execution conditional on the appellant depositing the decretal sum in a joint interest-earning account of both counsels within 30 days, failing which the stay would lapse.

Key legal issues

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01

Jurisdiction of the ELRC over work injury appeals from the magistrates' court

Holding

The court found it had jurisdiction, the subject matter being employment and labour, under Article 162(2)(a) and (3) and sections 3 and 12 of the ELRC Act.

Reasoning

The court examined the subject matter of the suit before the Chief Magistrate and determined it related to employment and labour, a matter within the exclusive jurisdiction of the ELRC under Article 162(2)(a) and (3) of the Constitution read with sections 3 and 12 of the ELRC Act as amended. Appeals from magistrates' courts in such matters accordingly fall to this court.

p. 1
02

Extension of time and arguability of the appeal

Holding

Leave to appeal out of time granted; the applicant had an arguable appeal and the respondent would suffer no prejudice incapable of remedy by costs.

Reasoning

The court noted the notice of appeal was filed timeously though in the wrong court (the High Court at Nyamira, which struck the appeal out for want of jurisdiction). Following the Mugendi decision, the procedural misstep was not fatal. The court found an arguable appeal and no unremediable prejudice to the respondent.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court has jurisdiction to hear appeals from magistrate courts on matters whose subject matter is employment and labour.
  • A matter filed in a wrong court ought not to be struck out but should be transferred to the correct court.
  • Filing a notice of appeal timeously in a court without jurisdiction does not defeat the appellant where the matter now comes before the court with jurisdiction.

Court orders

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  1. 1.Leave granted to file the appeal out of time
  2. 2.The draft notice of appeal deemed as duly filed subject to payment of requisite fees
  3. 3.Stay of execution granted pending hearing and determination of the appeal on condition that the appellant deposits the decretal sum in a joint interest-earning account held by counsel for both parties within 30 days, failing which the stay shall lapse

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a) and (3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court Actsections 3 and 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8(1), (2), (3) and (4)
  • Work Injury Benefits Act, 2007Not specified
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Prof. Daniel N. Mugendi – VS- Kenyatta University & 3 others
    Civil Appeal No. 6 of 2012 (2013) eKLR
  • United States International University (USIU) – VS – The Attorney General & Others
    Petition No. 170 of 2012
On appeal from
Chief Magistrate's Court, Nyamira
Not stated
Jurisdiction invoked
Article 162(2)(a) and (3) of the Constitution of Kenya 2010 read with sections 3 and 12 of the Employment and Labour Relations Court Act, 2011

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, "Kisii County Government & another v Jackson Moindi Ontegi [2020] KEELRC 838 (KLR)", Case Analysis (2020). Not stated in judgment (notice of motion dated 7th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/838/eng@2020-06-25

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