Mate v Gibb Afica Limited (Miscellaneous Application E209 of 2021) [2023] KEELRC 353 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an incompetent suit filed before a court without pecuniary jurisdiction can be transferred under section 18 of the Civil Procedure Act
It cannot; the suit is null and void ab initio and there is no suit capable of transfer.
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.
Whether the absence of rebuttal submissions by the applicant warranted dismissal
Yes; the applicant offered no submissions or authorities to rebut the respondent's case supported by binding precedent.
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.
Legal principles established
#- 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
#- 1.The application filed by the notice of motion dated December 5, 2022 is dismissed with costs
- Jurisdiction invoked
- Sections 18(1)(b) and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.