Chebuyi v Frodak Kenya Limited & another (Miscellaneous Application E024 of 2022) [2023] KEELRC 894 (KLR)
The bottom line
#Kenya's Bungoma Employment Court ruled that a suit filed in a court without jurisdiction is incompetent and cannot be fixed by a transfer order, especially where applicants hide facts.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit filed in a court lacking pecuniary jurisdiction can be transferred under Section 18 of the Civil Procedure Act
No; such a suit is incompetent and cannot be transferred, as jurisdiction cannot be conferred by consent or transfer
The trial magistrate had held the Butali court lacked pecuniary jurisdiction and downed its tools, advising the claimants to file in the High Court. Relying on the Supreme Court in Albert Charembo Nyumba and the Court of Appeal in Equity Bank Ltd v Brince Mutie Mutuku, the court held that a transfer order cannot sanctify an incompetent suit; the suit ought to have been struck off.
Whether the Applicants' non-disclosure of Bungoma ELRC No 49 of 2021 disentitled them to the discretionary transfer order
Yes; the Applicants were guilty of material non-disclosure of the ruling in Bungoma ELRC No 49 of 2021, which flowed from the same primary suit
The court perused the ruling of April 21, 2022 in ELRC 49 of 2021, which recorded that the claimants themselves had mentioned the Butali ruling directing them to file in the High Court. The Applicants' claim that the suit had different parties did not absolve them of material non-disclosure in seeking the transfer.
Whether the magistrate's ruling of July 9, 2020 ordered transfer of the primary suit to the ELRC
No; the magistrate neither ordered transfer nor had jurisdiction to do so; the court only advised the claimants to file in the High Court
The supporting affidavit of Vivian Shibanda asserted that the July 9, 2020 ruling directed transfer. On perusal, the magistrate had found the suit outside his pecuniary jurisdiction, downed his tools and advised filing in the High Court. The court therefore rejected the Applicants' characterization of that ruling.
Legal principles established
#- An order for transfer of a suit cannot be made unless the suit was brought in the first instance to a court with jurisdiction to try it; parties cannot confer jurisdiction by consent
Court orders
#- 1.Application dated December 6, 2022 dismissed
- 2.Costs to the Respondent
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act (power to transfer suits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chebuyi v Frodak Kenya Limited & another (Miscellaneous Application E024 of 2022) [2023] KEELRC 894 (KLR)", Case Analysis (2023). Butali MCE & LR No 4 of 2020 (ruling on Notice of Motion dated December 6, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/894/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.