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ELRCDismissedMiscellaneous Application dated October 17, 2022 (re: Civil Suit No 8062 of 2018)· [2023] KEELRC 787 (KLR)

Muema v Tenglon Construction Ltd (Cause E186 of 2022) [2023] KEELRC 787 (KLR)

Employment and Labour Relations Court
27 March 2023
AMAnna Ngibuini Mwaure
707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot fix a suit filed in the wrong court by transferring it; you must withdraw and file afresh in the right court.

What this practically means

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Executive summary

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The claimant, who lost his right hand in an accident at the respondent's place of work, was awarded Kshs 763,200/- by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act. Dissatisfied, he filed Civil Suit No 8062 of 2018 in the Milimani Chief Magistrate's Court (Commercial Courts) and later moved the Employment and Labour Relations Court by application dated October 17, 2022 seeking transfer of that suit, on the ground that the Chief Magistrate's Court lacked jurisdiction over WIBA matters. The respondent's advocate filed a notice of appointment but did not oppose the application, leaving it undefended. The court, presided over by Anna Ngibuini Mwaure J, held that appeals from the Director's report lie to the Employment and Labour Relations Court under section 54(2) of WIBA, but that a court cannot transfer a suit which was wrongly filed in a court with no jurisdiction. The claimant's remedy was to withdraw the suit and file it in the correct court. The application was dismissed with costs in the cause. The judgment was delivered virtually pursuant to COVID-19 directions of the Chief Justice, invoking Articles 159(2)(d) and 48 of the Constitution and section 1B of the Civil Procedure Act. Practically, claimants in WIBA matters must institute or lodge appeals in the ELRC directly, since transfer cannot cure a fundamental lack of jurisdiction in the originating forum.

Key legal issues

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01

Whether a suit wrongly filed in the Chief Magistrate's Court, which lacks jurisdiction over WIBA matters, can be transferred to the Employment and Labour Relations Court

Holding

No; a court cannot transfer a suit that was filed in a court with no jurisdiction - the applicant must withdraw and file in the correct court

Reasoning

Under section 54(2) of the Work Injury Benefits Act, appeals from the Director's decision lie to the Industrial Court (now the Employment and Labour Relations Court). The applicant erroneously filed his suit in the Chief Magistrate's Court, which had no jurisdiction over WIBA matters. A court cannot cure a filing in a court lacking jurisdiction by transferring it; the only option is withdrawal and fresh filing in the right forum. The application was undefended as the respondent's advocate never objected.

p. 2

Legal principles established

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  • A court cannot transfer a suit filed in a court lacking jurisdiction to another court; the remedy is withdrawal and fresh filing in the court with jurisdiction
  • Appeals from the Director of Occupational Safety and Health Services lie to the Employment and Labour Relations Court under WIBA section 54(2)

Court orders

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  1. 1.The application dated October 17, 2022 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Work Injury Benefits ActSection 54(2)
  • Employment and Labour Relations Actnot specified
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; Work Injury Benefits Act section 54(2) (appeals from DOSH to the Industrial Court)

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, "Muema v Tenglon Construction Ltd (Cause E186 of 2022) [2023] KEELRC 787 (KLR)", Case Analysis (2023). Miscellaneous Application dated October 17, 2022 (re: Civil Suit No 8062 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/787/eng@2023-03-27

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