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ELRCAllowedELRC Cause No 488 of 2022· [2023] KEELRC 857 (KLR)

Omondi v Ark Constuction Ltd (Cause E488 of 2022) [2023] KEELRC 857 (KLR)

Employment and Labour Relations Court
6 April 2023
AMAnna Ngibuini Mwaure
746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed an employee's mistakenly filed unfair termination claim to be transferred to the Magistrate's Court, prioritising substance over procedural technicalities.

What this practically means

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Executive summary

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The claimant, Francis Kioko, filed a notice of motion dated October 19, 2022 seeking transfer of ELRC Cause No 488 of 2022 from the Employment and Labour Relations Court to the Chief Magistrate's Court, with costs in the cause. His claim concerned employment from April 2018 to 13 July 2019 at a monthly salary of Kshs 21,600, which he alleged was unfairly terminated. He deponed that his legal assistant erroneously filed the memorandum of claim in the High Court/ELRC instead of the subordinate court, and that upon discovering the error he promptly wrote to the Deputy Registrar on July 10, 2022 seeking a mention to effect transfer pursuant to Gazette Notice No 6024 of June 22, 2018. The respondent opposed the application through grounds of opposition, contending there was no legal basis for transfer and relying on Vincent Mwatsuma Ngunya v Kilifi Mariakama Water & Sewerage Co Ltd, where it was held that parties must ensure suits are filed in the right court. The court found that the subordinate court's pecuniary jurisdiction in employment matters is Kshs 80,000 and the claimant's salary was Kshs 21,600, so the claim properly belonged to the subordinate court. The court held the claimant had been diligent in correcting his office's mistake, that no prejudice would be suffered by the respondent, and invoked Article 159(2)(d) of the Constitution requiring justice without undue regard to technicalities. The court allowed the application, transferring the suit to the Chief Magistrate's Court, with costs in the cause. Judgment was delivered virtually in Nairobi on April 6, 2023.

Key legal issues

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01

Transfer of a suit erroneously filed in a court without pecuniary jurisdiction

Holding

The claimant's application to transfer the suit to the Chief Magistrate's Court was granted because the claimant's salary of Kshs 21,600 fell within the subordinate court's pecuniary jurisdiction in employment matters (Kshs 80,000), the error was the legal assistant's, and the claimant acted promptly.

Reasoning

The suit was filed in the ELRC in July 2022 though the claim fell within the pecuniary jurisdiction of the subordinate court. The claimant quickly sought transfer upon discovering the error. The court found the claimant diligent, found no prejudice to the respondent, and invoked Article 159(2)(d) requiring substantive justice over technicalities.

p. 2

Legal principles established

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  • Courts should dispense justice without undue regard to procedural technicalities under Article 159(2)(d)
  • A party who diligently corrects an erroneous filing by its office should be allowed to transfer a suit to the court with proper pecuniary jurisdiction

Court orders

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  1. 1.ELRC Cause No 488 of 2022 is transferred to the Chief Magistrate's Court for trial and determination
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Gazette Notice No 6024 of June 22, 2018pecuniary jurisdiction of subordinate courts

Cases cited (1)

  • Vincent Mwatsuma Ngunya vs Kilifi Mariakama Water & Sewerage Co Ltd
    Cause Nos 39, 40, 41, 44, 52 and 53 of 2019
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Omondi v Ark Constuction Ltd (Cause E488 of 2022) [2023] KEELRC 857 (KLR)", Case Analysis (2023). ELRC Cause No 488 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/857/eng@2023-04-06

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