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ELRCDismissedButali MCE & LR No 4 of 2020 (ruling on Notice of Motion dated December 6, 2022)· [2023] KEELRC 894 (KLR)

Chebuyi v Frodak Kenya Limited & another (Miscellaneous Application E024 of 2022) [2023] KEELRC 894 (KLR)

Employment and Labour Relations Court of Kenya at Bungoma
14 April 2023
980 words in judgment
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The bottom line

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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

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Executive summary

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The Applicants, by Notice of Motion dated December 6, 2022, sought transfer of Butali MCE & LR No 4 of 2020 from Butali Law Courts to the Bungoma High Court ELRC, supported by the affidavit of Vivian Shibanda Advocate and citing a ruling of July 9, 2020. The application was initially unopposed and allowed, but the 1st and 2nd Respondents later successfully applied to set aside the transfer order for hearing on merit, filing replying affidavits sworn by George Ager and Otieno Njoga. They argued the trial court lacked pecuniary jurisdiction and that the Claimants had concealed a related suit, Bungoma ELRC No 49 of 2021 (formerly Kisumu ELRC E019 of 2021), dismissed as time-barred on April 21, 2022. The Applicants denied concealment, asserting the suits involved different parties. The court found, first, that the magistrate in the July 9, 2020 ruling had merely advised filing in the High Court after finding the suit outside his pecuniary jurisdiction - he did not order a transfer. Second, the perusal of the ruling in ELRC No 49 of 2021 showed the claimants themselves had acknowledged that ruling, establishing material non-disclosure. Relying on the Supreme Court's decision in Albert Charembo Nyumba and the Court of Appeal in Equity Bank Ltd v Brince Mutie Mutuku, the court held that an incompetent suit filed in a court without pecuniary jurisdiction cannot be transferred under Section 18 of the Civil Procedure Act. The application dated December 6, 2022 was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a suit filed in a court lacking pecuniary jurisdiction can be transferred under Section 18 of the Civil Procedure Act

Holding

No; such a suit is incompetent and cannot be transferred, as jurisdiction cannot be conferred by consent or transfer

Reasoning

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.

p. 2
02

Whether the Applicants' non-disclosure of Bungoma ELRC No 49 of 2021 disentitled them to the discretionary transfer order

Holding

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

Reasoning

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.

p. 2
03

Whether the magistrate's ruling of July 9, 2020 ordered transfer of the primary suit to the ELRC

Holding

No; the magistrate neither ordered transfer nor had jurisdiction to do so; the court only advised the claimants to file in the High Court

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application dated December 6, 2022 dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 18

Cases cited (3)

  • Albert Charembo Nyumba & 9 Others v Maurice Munyao & 148 Others
    [2019] eKLR
  • Kagenyi v Msiramo & Another
    [1968] EALE 43
  • Equity Bank Limited v Brince Mutie Mutuku T/A Diani Tour Travel
    2016 eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power to transfer suits)

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, "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.