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ELRCPartially AllowedMisc Application No E072 of 2020· [2021] KEELRC 793 (KLR)

Francis Kibugi Wanjohi v Kenya Railways Corporation [2021] KEELRC 793 (KLR)

Employment and Labour Relations Court
8 October 2021
MOMaureen Onyango
3,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, the Claimant's advocate, moved the Employment and Labour Relations Court by Notice of Motion dated 7th December 2020 seeking transfer of Milimani MCELRC/E993/2020, Francis Kibugi Wanjohi v Kenya Railways Corporation, from the Chief Magistrates Court to the ELRC. The claim had been inadvertently filed in the Chief Magistrates Court because counsel based venue on pecuniary jurisdiction rather than the Claimant's gross salary, and there was apprehension the claim would be dismissed for want of jurisdiction. The Respondent opposed, arguing that a suit filed without jurisdiction is a nullity incapable of transfer, and that the application was designed to circumvent a pending preliminary objection. The court identified a single issue: whether the Applicant was entitled to the orders sought. Reviewing the conflicting jurisprudence - Equity Bank v Mutie and Phoenix of E.A. Assurance holding a jurisdictionally void suit is not transferable, against Kenya Plantation Workers Union v Cargill, Ali Jarso Wako, Henry Kigen and Prisca Jepngétich favouring transfer - the court held that good faith in filing in the wrong forum is the decisive consideration. Both parties conceded the Chief Magistrates Court lacked jurisdiction, the error was inadvertent, and compelling fresh filings would waste court fees, time and risk limitation, contrary to Article 159(2)(d) of the Constitution and Sections 3 and 12(3)(viii) of the ELRC Act. The application was allowed: the file was transferred to the ELRC at Nairobi, parties were directed to seek pre-trial conferencing, but the Respondent was awarded the costs of the application. Judgment delivered at Nairobi on 8th October 2021 by Maureen Onyango, Judge.

Key legal issues

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

Holding

The application was allowed and the file transferred to the ELRC, following the line of authority that transfer of an existing claim is an administrative facilitative act consistent with Article 159 and the overriding objective, since the mistake was made in good faith and both parties conceded the Chief Magistrate's Court lacked jurisdiction

Reasoning

The court reviewed the conflicting authorities: Equity Bank v Mutie and Phoenix of E.A. Assurance (nullity not transferable) versus KPAWU v Cargill, Ali Jarso Wako, Henry Kigen and Prisca Jepngétich. It found courts must consider good faith in filing in the wrong forum. The mistake was inadvertent, the claimant had an employment dispute undetermined on merit, and requiring fresh filings would waste fees, time and possibly defeat limitation under Section 90 of the Employment Act, contrary to Article 159(2)(d) and Sections 3 and 12(3)(viii) of the ELRC Act.

Legal principles established

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  • Where a suit is filed in a court lacking jurisdiction in good faith (through counsel's inadvertent mistake), the court should administer substantive justice under Article 159(2)(d) and transfer the file to the correct forum rather than compel fresh filing

Court orders

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  1. 1.The Chief Magistrates Court matter, Milimani MCELRC/E993/2020 is transferred to the Employment and Labour Relations Court at Nairobi for hearing and determination
  2. 2.Parties shall move the Employment and Labour Relations Court for pre-trial conferencing, upon the arrival of the file from the Chief Magistrates Court
  3. 3.The Respondent is awarded costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 48; Article 162(2)
  • Employment and Labour Relations Court ActSection 3; Section 12(3)(viii)
  • Civil Procedure ActSection 18(1)(b); Section 1B
  • Employment Act, 2007Section 90
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (12)

  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
  • Kenya Plantation and Agricultural Workers Union v Cargill Kenya Limited & another
    [2020] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga T/A Newspaper Service
    [2019] eKLR
  • Ruth Muthoni Mwangi v Kenya Meat Commission
    [2020] eKLR
  • Boniface Waweru Mbiyu v Mary Njeri & another
    [2005] eKLR
  • Kagenyi v Musiramo
  • Prisca Jepngétich v Generation Career Readiness Social Initiative Limited
    [2021] eKLR
  • Ali Jarso Wako & Another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties)
    [2020] eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    (2013) eKLR
  • Henry Kigen & 6 others v Baringo County Governor & 2 others
    [2020] eKLR
  • Pamoja Women Development Programme & 3 others v Jackson Kihumbu Wangombe & another
    [2016] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 3 and Section 12(3)(viii) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Francis Kibugi Wanjohi v Kenya Railways Corporation [2021] KEELRC 793 (KLR)", Case Analysis (2021). Misc Application No E072 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/793/eng@2021-10-08

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