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ELRCOtherELRC Cause, Nakuru (Statement of Claim dated May 6, 2022; notice of motion dated October 21, 2022)· [2023] KEELRC 1458 (KLR)

Chege v Bank of Baroda (Kenya) Ltd (Cause E015 of 2022) [2023] KEELRC 1458 (KLR)

Employment and Labour Relations Court
8 June 2023
DNDavid Nderitu
2,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Employment Court in Nakuru moved a banker's unfair dismissal case to Mombasa, ruling that where a claim is filed depends on where the job dispute arose, not where the worker lives.

What this practically means

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Executive summary

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By a notice of motion dated October 21, 2022, the Respondent bank sought transfer of the Claimant's employment cause from ELRC Nakuru to ELRC Mombasa under Section 29(1) of the Employment and Labour Relations Court Act, Rule 17(1) of the ELRC Court Rules 2016 and Order 51 Rule 1 of the Civil Procedure Rules. The Claimant, summarily dismissed on October 29, 2021 while serving at the Respondent's Nyali branch in Mombasa, had filed his claim at Nakuru where he resides, contending that the ELRC has countrywide jurisdiction and that virtual hearings obviate the need for transfer given his unemployment and lack of means. The court first struck out the Claimant's replying affidavit because its jurat omitted the date and place of swearing, contrary to Section 5 of the Oaths and Statutory Declarations Act, deeming it of no evidential value. On the merits, the court held that the Civil Procedure Act applies to the ELRC and, following Sections 11 to 15, that the place of filing is determined principally by where the cause of action arose and secondarily by the respondent's residence or place of business. Since the dismissal and disciplinary proceedings occurred at Mombasa and the respondent's witnesses were based there, the cause ought to have been filed at Mombasa; the claimant's residence and financial hardship are not legally recognised considerations. The court cautioned against forum shopping and allowed the application, transferring the cause to ELRC Mombasa, with costs of the application in the cause.

Key legal issues

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01

Validity of a replying affidavit whose jurat omits date and place of swearing

Holding

The affidavit was struck out as improperly executed and of no value

Reasoning

Section 5 of the Oaths and Statutory Declarations Act requires the jurat to state the date and place of the oath. The court concurred with counsel for the Respondent that a non-compliant affidavit is merely a paper on record, and proceeded to determine the application without reference to it.

p. 4
02

Proper forum for filing an employment cause under Sections 11–15 of the Civil Procedure Act

Holding

The cause ought to have been filed at ELRC Mombasa where the cause of action arose

Reasoning

The claimant's last work station, the disciplinary proceedings and the dismissal all occurred at Mombasa, and the respondent's witnesses were based there. The claimant's residence and financial hardship are not legally recognised factors for choosing venue. Permitting claimants to choose forum freely would enable forum shopping.

p. 5
03

Applicability of the Civil Procedure Act and Rules to ELRC proceedings

Holding

The Civil Procedure Act applies to the ELRC, and the Civil Procedure Rules fill gaps where the ELRC (Procedure) Rules are silent

Reasoning

The court held that all statutes apply to the ELRC save where the law otherwise provides, agreeing with Kitiku J in Michael Adib Azzam and Marete J in Francis Kimutai Bii that Civil Procedure Rules apply where the court's own rules fail to provide procedure.

p. 4

Legal principles established

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  • A purported affidavit that is not properly executed (jurat lacking date and place of swearing) is of no evidential value
  • The two major determinants of where a suit or cause is filed are where the cause of action arose and where the defendant ordinarily resides or carries on business
  • Where the ELRC (Procedure) Rules are silent, the Civil Procedure Rules apply to fill the gaps

Court orders

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  1. 1.The notice of motion dated October 21, 2022 by the Respondent is allowed and the cause is transferred to ELRC Mombasa for hearing and determination
  2. 2.The purported replying affidavit by the Claimant is struck out for being improperly executed
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 29(1); Sections 3 and 29
  • Employment and Labour Relations Court Rules 2016Rule 17(1)
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure ActSections 11 to 15
  • Oaths and Statutory Declarations ActSection 5

Cases cited (5)

  • Mulusiah Land Consultants & Another V Industrial Development Bank & 2 Others
    (2005) eKLR
  • Talewa Road Contractors Limited V Kenya National Highways Authority
    (2014) eKLR
  • Gideon Sitelu Konchellah V Julius Lekakeny Ole Sunkuli & 2 Others
    (2018) eKLR
  • Michael Adib Azzam V Zakhem Construction (K) Limited
    (2022) eKLR
  • Francis Kimutai Bii V Kaisungu (K) Limited
    (2016) eKLR
Jurisdiction invoked
Sections 3 and 29(1) of the Employment and Labour Relations Court Act; Rule 17(1) of the ELRC Court Rules 2016; Order 51 Rule 1 of the Civil Procedure Rules 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, "Chege v Bank of Baroda (Kenya) Ltd (Cause E015 of 2022) [2023] KEELRC 1458 (KLR)", Case Analysis (2023). ELRC Cause, Nakuru (Statement of Claim dated May 6, 2022; notice of motion dated October 21, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1458/eng@2023-06-08

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