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ELRCDismissedELRCA E037 of 2022· [2023] KEELRC 127 (KLR)

Kyama v Muthaiga Golf Club (Employment and Labour Relations Appeal E037 of 2022) [2023] KEELRC 127 (KLR)

Employment and Labour Relations Court
23 January 2023
AMANNA N. MWAURE
1,132 words in judgment
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The bottom line

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The Employment Court dismissed a worker's appeal application because it was filed in the wrong court, highlighting how costly jurisdictional mistakes can be.

What this practically means

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Executive summary

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The respondent filed a preliminary objection dated August 3, 2022 against the applicant's notice of motion dated March 17, 2022, which sought extension of time to file a notice of appeal and record of appeal against a judgment delivered on January 28, 2022 by Onesmus N. Makau J in ELRC No 917 of 2016, and a definition of the time span for filing the record of appeal. The objection was that the application was addressed to the Court of Appeal, making it fatally defective and void ab initio; that the court was functus officio having delivered its own judgment; that it lacked jurisdiction to grant the orders sought; and that the application was vexatious and an abuse of process. The applicant argued the objection was malicious and that the court had jurisdiction to hear the intended appeal. The respondent relied on Kenya Sugar Co Limited v Maitayo Ngoshe (2021) eKLR, where the High Court struck out an appeal filed in the wrong court. The court found that the application was headed as a Court of Appeal matter and brought under Rules 4 and 5(2)(b) of the Court of Appeal Rules, which do not apply to the ELRC, which has its own procedure rules. Applying the principle in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd that jurisdiction is everything, and the reasoning in Mukesh Kumar Kantilal Patel v Charles Lagat that a filing in the wrong court cannot be validated, the court held it had no jurisdiction to entertain an application for extension of time to appeal against its own decision. The application was dismissed with costs to the respondent. Judgment was delivered virtually at Nairobi on January 23, 2023 by Anna N. Mwaure J.

Key legal issues

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01

Jurisdiction of the ELRC over an application drawn under Court of Appeal Rules

Holding

The ELRC has no jurisdiction to entertain an application under Rules 4 and 5(2)(b) of the Court of Appeal Rules seeking extension of time to appeal against its own judgment; the application is defective and must be dismissed

Reasoning

The application was headed as a Court of Appeal matter and grounded on Court of Appeal Rules, which do not apply to the ELRC. The ELRC has its own procedure rules. A court cannot assume jurisdiction where none exists, and an error by a party does not cure a filing in the wrong court. The court relied on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd and on the principle from Mukesh Kumar Kantilal Patel v Charles Lagat that a filing in the wrong court is invalid regardless of its framing.

p. 2

Legal principles established

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  • Jurisdiction is everything; without it a court cannot take a further step
  • An application filed in the wrong court under inapplicable rules cannot be sustained in that court

Court orders

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  1. 1.The application dated March 17, 2022 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Judicature Actsection 7
  • Court of Appeal Rules, 2010Rules 4 and 5(2)(b)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenyaarticle 159(2)(d)
  • Constitution of Kenyaarticle 48
  • Civil Procedure Actsection 1B

Cases cited (3)

  • Kenya Sugar Co Limited v Maitayo Ngoshe
    (2021) eKLR
  • Mukesh Kumar Kantilal Patel v Charles Lagat
    Court of Appeal Case No E046 of 2021
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    1989
Jurisdiction invoked
ELRC's own jurisdiction (the court found it lacked jurisdiction over the application, which was brought under Court of Appeal Rules); virtual delivery guided by article 159(2)(d) and article 48 of the Constitution

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, "Kyama v Muthaiga Golf Club (Employment and Labour Relations Appeal E037 of 2022) [2023] KEELRC 127 (KLR)", Case Analysis (2023). ELRCA E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/127/eng@2023-01-23

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