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ELRCPartially AllowedNotice of motion dated November 15, 2022 (Miscellaneous)· [2023] KEELRC 488 (KLR)

Ojulo v Frodak Kenya Ltd. & another (Miscellaneous Application E020 of 2022) [2023] KEELRC 488 (KLR)

Employment and Labour Relations Court
23 February 2023
1,516 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed transferring dozens of sugar workers' employment cases to Butali Law Courts because it was closer, but spared cases already on appeal.

What this practically means

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Executive summary

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The applicant, through a notice of motion dated November 15, 2022 supported by the affidavit of V.A Shibanda, sought the transfer of numerous suits (ELRC claims against Frodak Kenya Limited and Butali Sugar Mills Limited) from the Kakamega Chief Magistrate's Court to Butali Law Courts, on grounds that the respondents operate near Butali, the claimants live in the Butali area, and transfer would save travel costs and serve the interests of justice. The 2nd Respondent opposed through the affidavit of Alex Mbeka, pointing to preliminary objections decided at Kakamega, suits already struck out for want of territorial jurisdiction, and pending appeals in several of the listed matters including Kakamega MC ELRC No E7 of 2020. Written submissions were filed by both parties; further submissions by the 2nd Respondent's law firm were disregarded as duplicity. Framing the issue as whether the applicant was entitled to the orders sought and costs, the court applied Sections 17 and 18 of the Civil Procedure Act and adopted the factors in Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd, finding proximity to the respondents' place of business a good ground for transfer with no prejudice to the respondents. However, it declined to make orders touching suits with pending appeals. The court allowed the application in part, transferring the enumerated suits to Butali Law Courts, expressly excluding struck-off or dismissed suits, and awarded costs of the application to the respondent.

Key legal issues

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01

Whether the transfer of the listed suits to Butali Law Courts was warranted

Holding

Transfer allowed for suits not subject to pending appeals, on grounds of proximity and convenience under Sections 17 and 18 of the Civil Procedure Act

Reasoning

The applicant justified transfer on the proximity of the respondents' place of business and residence of claimants to Butali Law Courts, both courts being within Kakamega County. Applying the Hangzhou Agrochemicals factors (balance of convenience, expense, interests of justice), the court found proximity a good ground and no prejudice to respondents. It nonetheless declined to order transfer of suits where appeals were already pending.

p. 4
02

Whether suits with pending appeals could be transferred

Holding

No - the court declined to make transfer orders over suits within pending appeals

Reasoning

The 2nd Respondent demonstrated that some listed suits (Kakamega MC ELRC Nos 52, 53, 78 and 90 of 2020) had been struck out for want of territorial jurisdiction and that appeals were pending in several matters including Kakamega MC ELRC No E7 of 2020. The court held it imprudent to make orders affecting suits within pending appeals and excluded them.

p. 4

Legal principles established

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  • Proximity of the respondents' place of business and convenience of the parties is a good ground for transfer of suits, absent prejudice to the respondents
  • The factors in Hangzhou Agrochemicals v Panda Flowers for transfer applications were adopted as good law

Court orders

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  1. 1.Kakamega MC ELRC Nos E 8, 90, 207, 57, 46, 103, 144, 163, 156, 155, 80, 157, 143, e41, 14, 107, 194, 134, 95, 78, 133, 126, 60 of 2020, 209 of 2019, 207 of 2019, 208 of 2019, 206 of 2019, 193 of 2019, 64 of 2019, 179 of 2019 and 120 of 2019 transferred from Kakamega Chief Magistrate's Court to Butali Law Courts for hearing and determination, the order not affecting any struck off or dismissed suit at the lower court
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 17
  • Civil Procedure ActSection 18

Cases cited (4)

  • Kithita Ngeana v Mwaniki Kisume
    [2018] eKLR
  • Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd
    [2012] eKLR
  • John Wemali v Frodak Kenya Limited & Butali Sugar Mills Limited (Misc ELRC No 25 of 2020)
  • Ezekiel Wakukha Cheto v Frodak Kenya Limited & Butali Sugar Mills Limited (Kakamega MC ELRC No 55 of 2020)
Jurisdiction invoked
Sections 17 and 18 of the Civil Procedure Act (transfer of suits between subordinate courts)

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, "Ojulo v Frodak Kenya Ltd. & another (Miscellaneous Application E020 of 2022) [2023] KEELRC 488 (KLR)", Case Analysis (2023). Notice of motion dated November 15, 2022 (Miscellaneous). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/488/eng@2023-02-23

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