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ELRCDismissedNotice of motion dated December 5, 2022 (ELRC)· [2023] KEELRC 353 (KLR)

Mate v Gibb Afica Limited (Miscellaneous Application E209 of 2021) [2023] KEELRC 353 (KLR)

Employment and Labour Relations Court
10 February 2023
616 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan employment case filed in the wrong court cannot simply be moved to the right one; it must be started afresh where jurisdiction lies.

What this practically means

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Executive summary

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The applicant, earning a monthly salary of Kshs 380,000, filed a notice of motion dated December 5, 2022 seeking transfer of Milimani Chief Magistrate ELRC No E2127 of 2021, in which he was claimant, to the Employment and Labour Relations Court, contending that the Magistrates' Court lacked pecuniary jurisdiction limited to gross salaries of Kshs 80,000 per month and that the suit had been filed there in error. The respondent, through the replying affidavit of Wanjiku Kariuki Advocate, opposed the application, pointing out that it had raised a preliminary objection on jurisdiction before the trial court, that no directions had issued for the filing of this application, and that a suit filed before a court without jurisdiction is incompetent and incapable of transfer. Counsel relied on the Supreme Court decision in Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 others, which upheld Kagenyi v Musiramo, and on John Adoyo & 6 Others v De La Rue and Equity Bank Limited v Bruce Mutie Mutuku, and filed a preliminary objection seeking striking out of the application. Byram Ongaya, Principal Judge, found that the applicant filed no submissions or authorities to rebut the respondent's case supported by binding decisions, upheld the respondent's case, and dismissed the application with costs, holding that a suit null and void ab initio for want of jurisdiction cannot be transferred.

Key legal issues

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01

Whether an incompetent suit filed before a court without pecuniary jurisdiction can be transferred under section 18 of the Civil Procedure Act

Holding

It cannot; the suit is null and void ab initio and there is no suit capable of transfer.

Reasoning

Relying on the Supreme Court's decision in Albert Chaurembo Mumba upholding Kagenyi v Musiramo, the court held that transfer presupposes that the originating court had jurisdiction. The applicant's salary of Kshs 380,000 exceeded the Magistrates' Court's Kshs 80,000 pecuniary limit, so the suit was incompetent from inception and the overriding objective under Article 159 could not cure the want of jurisdiction.

p. 2
02

Whether the absence of rebuttal submissions by the applicant warranted dismissal

Holding

Yes; the applicant offered no submissions or authorities to rebut the respondent's case supported by binding precedent.

Reasoning

The court noted that the applicant filed no submissions or contrary authorities, leaving the respondent's position, supported by binding Supreme Court and Court of Appeal decisions, unrebutted. The respondent's case was therefore upheld and the application dismissed with costs.

p. 2

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was brought in the first instance in a court with jurisdiction to try it; parties cannot consent to confer jurisdiction.

Court orders

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  1. 1.The application filed by the notice of motion dated December 5, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 others
    [2019] eKLR
  • Kagenyi v Musiramo & Another
    (1968) EALR 43
  • John Adoyo & 6 Others v De La Rue Currency and Security Print Limited
    [2022] EKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR
Jurisdiction invoked
Sections 18(1)(b) and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Mate v Gibb Afica Limited (Miscellaneous Application E209 of 2021) [2023] KEELRC 353 (KLR)", Case Analysis (2023). Notice of motion dated December 5, 2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/353/eng@2023-02-10

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