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ELRCAllowedNot stated in judgment (ELRC at Mombasa)· [2022] KEELRC 483 (KLR)

Michael Adib Azzam v Zakhem Construction [K] Limited [2022] KEELRC 483 (KLR)

Employment and Labour Relations Court of Kenya
10 March 2022
ANAgnes Kitiku Nzei
1,900 words in judgment
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The bottom line

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Kenya's employment court moved a Mombasa case to Nairobi, confirming that employment suits should normally be filed where the employer is based.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 7th October 2021 seeking transfer of the Claimant's employment suit from the ELRC at Mombasa to the ELRC at Nairobi, contending that its place of business and principal operations are in Nairobi and that litigating in Mombasa would prejudice it in court attendances and availing witnesses. The Claimant, Michael Adib Azzam, opposed, deponing that he was employed in 1976 and served in the Mombasa branch until constructive termination in March 2019, that the Respondent has coastal branches including Mariakani, that he is sickly and advised against travelling, and that the application amounted to forum shopping. Justice Agnes Kitiku Nzei held that the ELRC (Procedure) Rules 2016 are silent on where to sue, and that the Court may borrow from Section 15 of the Civil Procedure Act, following Ndolo J in Rift Valley Railways Workers Union and Marete J in Francis Kimutai Bii, and applying Swiss Deli Trade (Panama) Inc. The Claimant had failed to plead the Respondent's address as required by Rule 4(1)(b) of the ELRC Rules and did not clearly establish where the cause of action arose, contradicting himself in his Replying Affidavit. The court found the suit ought to have been filed in Nairobi and allowed the application, transferring the suit to Nairobi, with costs of the application in the cause. Judgment dated and delivered at Mombasa on 10th March 2022.

Key legal issues

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01

Applicability of the Civil Procedure Act and Rules to the ELRC on venue

Holding

The ELRC (Procedure) Rules 2016 are silent on where to sue; the Court may resort to the Civil Procedure Rules and Section 15 of the Civil Procedure Act to fill the lacuna.

Reasoning

The court noted the ELRC Rules 2016 do not address venue. Following Ndolo J in Rift Valley Railways Workers Union and Marete J in Francis Kimutai Bii, the practice is to borrow from the Civil Procedure Act and Rules where the Court's specific rules are silent. Section 15 of the Civil Procedure Act therefore supplies the criteria for where to institute a suit, making the defendant's location a main consideration.

p. 2
02

Where the suit ought to have been filed

Holding

The suit ought to have been filed in Nairobi where the Respondent is situate; the Claimant failed to plead the Respondent's address or clearly establish where the cause of action arose.

Reasoning

The Respondent pleaded it is situate in Nairobi and carries out largely all operations there. The Claimant did not plead the Respondent's physical and mailing address as required by Rule 4(1)(b) of the ELRC (Procedure) Rules 2016, did not demonstrate the registered office is not in Nairobi, and contradicted himself on where the cause of action arose, deponing to continuous employment in Mombasa while also working in several branches across the country.

p. 3

Legal principles established

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  • In selecting where to institute a suit, the defendant's location should be a main consideration under Section 15 of the Civil Procedure Act, whose objectives include avoiding unnecessary hardship to defendants.

Court orders

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  1. 1.The suit is transferred to the Employment and Labour Relations Court at Nairobi for hearing and disposal
  2. 2.Costs of the application will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 15
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 4(1)(b)
  • Industrial Court ActNot specified
  • Industrial Court (Procedure) Rules 2010Not specified

Cases cited (3)

  • Rift Valley Railways Workers Union –vs- Rift Valley Railways (Kenya) Limited & Another
    [2014] eKLR
  • FRANCIS KIMUTAI BII –VS- KAISUNGU [K] LIMITED
    [2016] eKLR
  • SWISS DELI TRADE (PANAMA) INC –VS- PRIVAMNUTS EPZ KENYA LIMITED
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations matters; transfer governed by Section 15 of the Civil Procedure Act applied by analogy

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Michael Adib Azzam v Zakhem Construction [K] Limited [2022] KEELRC 483 (KLR)", Case Analysis (2022). Not stated in judgment (ELRC at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/483/eng@2022-03-10

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