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ELRCDismissedMiscellaneous Application (E&LRC)· [2021] KEELRC 1672 (KLR)

Prisca Jepngétich v Generation Career Readiness Social Initiative Limited [2021] KEELRC 1672 (KLR)

Employment and Labour Relations Court
28 May 2021
JRJames Rika
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court refused to transfer an employment claim filed in the wrong court, confirming parties must choose the correct forum from the start.

What this practically means

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Executive summary

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The Claimant, whose claim against the Respondent was filed at the Chief Magistrate's Employment & Labour Relations Court at Nairobi as Cause No. 2243 of 2019, filed a Miscellaneous Application seeking transfer of that claim to the E&LRC after the Respondent raised a preliminary objection on pecuniary jurisdiction, the claimant's gross monthly salary of Kshs. 96,874 exceeding the Chief Magistrate's Court's pecuniary jurisdiction. The Claimant's advocate, Makena M' Mwirichia, attributed the wrong filing to Registry Staff and invoked Section 18 of the Civil Procedure Act. The Respondent opposed, contending the application was intended to defeat the preliminary objection, that the E&LRC has no transfer power under Section 18 of the Civil Procedure Act, and that the claim before the Magistrate's Court was a nullity. The Court held that the E&LRC is a specialized jurisdiction governed by the E&LRC Act and the E&LRC (Procedure) Rules, 2016, not the Civil Procedure Act, which applies only where specifically permitted by the Rules. The correct enabling provisions for transfer would be Section 12(3)(viii) as read with Section 3(1) of the E&LRC Act and Rule 17 of the Rules. The Court found the Claimant's explanation unconvincing, noted the inordinate delay before seeking transfer, and held that parties and advocates must ensure matters are filed in the right forum. The Court declined the application so the Chief Magistrate's Court could hear the preliminary objection, and made no order on costs.

Key legal issues

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01

Whether the E&LRC has transfer jurisdiction under Section 18 of the Civil Procedure Act

Holding

It does not; the appropriate enabling provision for transfer is Section 12(3)(viii) as read with Section 3(1) of the E&LRC Act and Rule 17 of the E&LRC (Procedure) Rules, 2016

Reasoning

The E&LRC is a specialized jurisdiction governed by the E&LRC Act and the E&LRC (Procedure) Rules, 2016, not the Civil Procedure Act. The Civil Procedure Act applies to the High Court and, subject to the Magistrates' Courts Act, to subordinate courts. It applies to the E&LRC only where the Rules specifically allow, as with execution under Rule 32(2). The Supreme Court's decision in Republic v. Karisa Chengo confirms these are different jurisdictions.

p. 1
02

Whether the Application to transfer the Claim should be allowed

Holding

The Application was declined; the Claimant improperly invoked Section 18 of the Civil Procedure Act and the Chief Magistrate's Court should be left to determine the preliminary objection on jurisdiction

Reasoning

The Court found the Claimant's explanation about Registry Staff deciding the forum unconvincing, noting the delay from filing in November 2018 to the application in December 2020, and that pecuniary jurisdiction is ordinarily clear-cut. The Respondent should be heard on its preliminary objection, and a nullity claim would not bar refiling within time under Section 90 of the Employment Act.

p. 2

Legal principles established

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  • The E&LRC does not exercise transfer jurisdiction under the Civil Procedure Act; transfer of claims from the Magistrates' Court to the E&LRC is governed by Section 12(3)(viii) as read with Section 3(1) of the E&LRC Act and Rule 17 of the E&LRC (Procedure) Rules, 2016
  • The Civil Procedure Act applies to E&LRC proceedings only where specifically allowed under the E&LRC (Procedure) Rules, 2016
  • It is the duty of parties and their advocates to ensure their matters are presented at the right forum

Court orders

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  1. 1.The Application dated and filed on 7th December 2020, by the Applicant herein and Claimant in CMEL Cause No. 2243 of 2019, is declined.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Employment and Labour Relations Court ActSection 29(3) and (4); Section 12(3)(viii); Section 3(1)
  • E&LRC (Procedure) Rules, 2016Rule 17; Rule 32(2)
  • Employment Act, 2007Section 90
  • Magistrate's Court Actnot specified

Cases cited (1)

  • Republic v. Karisa Chengo & 2 Others
    [2017] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(3)(viii) as read with Section 3(1), and Rule 17 of the E&LRC (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Prisca Jepngétich v Generation Career Readiness Social Initiative Limited [2021] KEELRC 1672 (KLR)", Case Analysis (2021). Miscellaneous Application (E&LRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1672/eng@2021-05-28

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