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ELRCOtherCause No E624 of 2021· [2023] KEELRC 1322 (KLR)

Oriawo v KK Security Services Limited (Cause E624 of 2021) [2023] KEELRC 1322 (KLR)

Employment and Labour Relations Court
18 May 2023
436 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled that filing a salary-capped employment claim there instead of a magistrates' court is a fixable mistake, and simply transferred the case.

What this practically means

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Executive summary

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This was a first-instance ruling of the Employment and Labour Relations Court at Nairobi on a preliminary objection by the respondent/applicant that the proceedings were fatally defective and incompetent because the court lacked pecuniary jurisdiction under Gazette Notice No. 6024 of 2018. That notice, issued by the Chief Justice under section 29(3) and (4)(b) of the Employment and Labour Relations Court Act, 2011, appointed magistrates of the rank of Senior Resident Magistrate and above as special magistrates to hear employment disputes where an employee's gross monthly pay does not exceed KShs. 80,000, along with specified offences under the employment statutes. The court held that the Gazette Notice did not strip the ELRC of jurisdiction but donated its powers to the designated magistrates; the claimant's claim fell within that delegated pecuniary jurisdiction and ought to have been filed in the magistrates' court, even though residual jurisdiction technically remained with the ELRC. The court concluded that filing in the wrong forum was not fatal but merely irregular. Rather than striking out the suit as the respondent sought, the court on its own motion transferred the suit to the Chief Magistrate's Court at Milimani Commercial Law Courts for hearing and disposal, with costs of the application to be costs in the cause. Judgment was delivered at Nairobi on 18 May 2023 by Nzioki wa Makau J.

Key legal issues

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01

Pecuniary jurisdiction of the ELRC vis-à-vis designated magistrates' courts under Gazette Notice No. 6024 of 2018

Holding

The Gazette Notice conferred, not removed, jurisdiction; magistrates of the rank of Senior Resident Magistrate and above may hear employment disputes where gross monthly pay does not exceed KShs. 80,000

Reasoning

The court read Gazette Notice No. 6024, issued under section 29(3) and (4)(b) of the Employment and Labour Relations Court Act, 2011, as delegating the ELRC's power to designated special magistrates within salary caps. The claimant's claim fell within that delegated pecuniary jurisdiction, so it should have been filed in the magistrates' court, though residual jurisdiction technically remained with the ELRC.

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02

Whether filing in a court with residual jurisdiction but outside the designated forum is fatal

Holding

It is a curable irregularity, not a fatal defect; the court exercised its power suo moto to transfer the suit to the Chief Magistrate's Court at Milimani

Reasoning

The respondent sought striking out for want of pecuniary jurisdiction. The court held that since residual jurisdiction resided in the ELRC, the misfiled suit was merely irregular. Rather than striking it out, the court invoked its own motion to transfer the matter to the proper forum, preserving the claim for hearing and disposal.

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Legal principles established

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  • Where a claim within the pecuniary jurisdiction of designated magistrates' courts is filed in the ELRC, the filing is an irregularity rather than a fatal defect, curable by transfer
  • Gazette Notice No. 6024 of 2018 did not strip the ELRC of jurisdiction but donated its powers to Senior Resident Magistrates and above for claims where monthly salary does not exceed KShs. 80,000

Court orders

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  1. 1.The suit is transferred suo moto by the court to the Chief Magistrate's Court at Milimani Commercial Law Courts for hearing and disposal
  2. 2.Costs of the application shall be costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 29(3) and (4)(b)
  • Labour Relations ActNot specified
  • Work Injury Benefits ActNot specified
  • Employment Act2007
  • Labour Institutions Act2007
  • Occupational Safety and Health Act2007
  • Employment and Labour Relations Court (Procedure) Rules2016
Jurisdiction invoked
Section 29(3) and (4)(b) of the Employment and Labour Relations Court Act, 2011 as read with Gazette Notice No. 6024 of 2018

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, "Oriawo v KK Security Services Limited (Cause E624 of 2021) [2023] KEELRC 1322 (KLR)", Case Analysis (2023). Cause No E624 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1322/eng@2023-05-18

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