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ELRCDismissedMemorandum of Claim dated 27th May, 2021 (instituted 2nd June, 2021)· [2021] KEELRC 313 (KLR)

Mary Wakarima Maina v Suada Sheikh Ahmed & 2 others [2021] KEELRC 313 (KLR)

Employment and Labour Relations Court
23 November 2021
HWHellen Wasilwa
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant sued the respondent alleging unfair termination by way of a redundancy notice dated 30th July, 2020, claiming she was employed on 1st February, 2014 at a salary that rose from Kshs 35,000 to Kshs 120,000 net, that the redundancy procedure was not followed, and that terminal dues were unpaid. The respondent filed a response and a preliminary objection contending that the Employment and Labour Relations Court lacked jurisdiction because the claimant's gross salary (said to be Kshs 62,948, net Kshs 50,000) fell below Kshs 80,000, so the magistrates' court had jurisdiction under section 9(b) of the Magistrates Court Act read with section 29 of the Employment and Labour Relations Court Act and Gazette Notice 6024. Relying on Equity Bank v Mutie, the respondent argued a suit filed without jurisdiction was a nullity incapable of transfer. The claimant countered, citing Mukisa Biscuits, Oraro v Mbaja and Eunice Karimi Kibunja, that the objection turned on the disputed factual question of her salary. The court agreed, holding that the salary contention was a factual matter resolvable only upon hearing the parties, so the objection was not a pure point of law within the Mukisa Biscuits threshold. The preliminary objection was dismissed, the claim was ordered to proceed for hearing, and costs were awarded in the cause.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

It was not; it depended on a disputed factual issue of the claimant's salary

Reasoning

The respondent argued the claimant earned below the Kshs 80,000 threshold for magistrates' court jurisdiction, while the claimant asserted a higher salary. The court held that the contention turned on the claimant's salary, a factual matter resolvable only upon hearing the parties, so the objection fell outside the Mukisa Biscuits principle and could not succeed as a pure point of law.

p. 2
02

Whether the preliminary objection was merited

Holding

It was dismissed and the claim was directed to proceed to hearing

Reasoning

Having found that the objection rested on facts requiring evidence, the court concluded it was beyond the Mukisa Biscuits threshold, found it unmerited, dismissed it, and ordered the claim to proceed for hearing, with costs in the cause.

p. 2

Legal principles established

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  • A preliminary objection that depends on ascertainment of facts, such as the claimant's salary, does not meet the Mukisa Biscuits threshold of a pure point of law

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The case to proceed for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Magistrates Court Actsection 9(b)
  • Magistrates Court Actsection 7
  • Employment and Labour Relations Court Actsection 29(4)
  • Constitution of KenyaArticle 169(2)
  • Civil Procedure Actsection 18
  • Gazette Notice number 6024conferral of jurisdiction on senior resident magistrates over employment claims up to Kshs 80,000 gross salary

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    [1969] EA 696
  • Rajiv Shem Sabisa v Limuru Water and Sewerage Company Limited
  • Equity Bank Limited v Bruce Mutie Mutuku T/A Diani Tour and Travel
    [2016] eKLR
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Eunice Karimi Kibunja v Mwirigi M'Ringera Kibunja
    Civil Appeal No. 103 of 1996 [1996] LLR 4896 CAK
Jurisdiction invoked
Constitution of Kenya, Article 169(2) read with section 29 of the Employment and Labour Relations Court Act and section 9(b) of the Magistrates Court Act (as invoked in the preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Wakarima Maina v Suada Sheikh Ahmed & 2 others [2021] KEELRC 313 (KLR)", Case Analysis (2021). Memorandum of Claim dated 27th May, 2021 (instituted 2nd June, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/313/eng@2021-11-23

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