Mbithi v Chairman, Board of Management Tala High School (Civil Appeal E024 of 2022) [2023] KEELRC 2911 (KLR)
The bottom line
#Kenya's Employment Court confirmed magistrates can hear employment cases under Gazette Notice No. 6024 of 2018, and wrongly naming your employer will not kill a valid claim.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of magistrates to hear employment and labour disputes
The trial Magistrate, being a Senior Resident Magistrate, was duly appointed as a Special Magistrate under Gazette Notice No. 6024 of 2018 and erred in declining jurisdiction on the basis that she had not been gazetted.
Gazette Notice No. 6024 of 10th June 2018, issued by the Chief Justice under section 29 of the Employment and Labour Relations Court Act, appointed all Magistrates of the rank of Senior Resident Magistrates and above as Special Magistrates to hear employment and labour relations cases within pecuniary and subject limits. The court held the appeal turned not on whether the Industrial Court Act was repealed, but on whether the trial Magistrate was gazetted; by her rank she was covered, so she should have assumed jurisdiction.
Effect of misjoinder or wrong description of the employer
Misnaming the employer does not defeat a valid claim; the error was curable by amendment and should not have resulted in dismissal.
The court relied on its own precedent and Rika J's authority to hold that employees rarely know the precise legal structure of their employers and cannot be shut out for describing them wrongly. The trial Magistrate's finding that the Chairman of the Board of Management was wrongly sued was a technicality curable by amendment, which the Appellant was willing to undertake.
Legal principles established
#- A Senior Resident Magistrate gazetted under Gazette Notice No. 6024 of 2018 has jurisdiction to hear and determine employment and labour relations matters within the specified limits; lack of personal gazettement is no ground to decline jurisdiction
- Misnaming or wrongly describing the employer cannot defeat an otherwise valid employment claim
Court orders
#- 1.The appeal is allowed
- 2.The ruling by Hon Martha Opanga, SRM delivered on 25th January 2022 is set aside
- 3.The Appellant's claim is remitted for hearing on merit before another Magistrate of the rank named in Gazette Notice No 6024 of 10th June 2018, other than Hon Opanga
- 4.The costs of the appeal will abide with the outcome of the trial in the lower court
- On appeal from
- Magistrates' Court (ruling by Hon Martha Opanga, SRM)
- Jurisdiction invoked
- Appeal from the subordinate court under the Employment and Labour Relations Court Act; Gazette Notice No. 6024 of 2018 (s. 29 Employment and Labour Relations Court Act, 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Chairman, Board of Management Tala High School (Civil Appeal E024 of 2022) [2023] KEELRC 2911 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2911/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.