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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 3351 (KLR)

Nyandege v Ekaterra Tea Kenya Plc (Employment and Labour Relations Cause E009 of 2023) [2023] KEELRC 3351 (KLR)

Employment and Labour Relations Court of Kenya
11 December 2023
HWHellen Wasilwa
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an unfair termination claim because the worker earned under Kshs. 80,000 monthly, meaning such cases belong in the lower court.

What this practically means

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Executive summary

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The Claimant sued the Respondent for alleged unfair termination, averring employment from 1995, confirmation on permanent terms in 1996, and dismissal on 20th April 2023 without a disciplinary hearing and for unsubstantiated cause, at a monthly salary of Kshs. 33,115. The Respondent filed a Response and a Preliminary Objection arguing that, by Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018, the ELRC only handles matters where the claimant earns a gross monthly salary exceeding Kshs. 80,000; since the Claimant earned Kshs. 33,115, the suit was incompetent, incapable of transfer, and an abuse of process. The Respondent relied on Owners of Motor Vessel 'Lillian S', Mukisa Biscuits, Watson Burugu, Uhuru Highway Developers, David Kabungu, Gaikia Kimani Kiarie, Kagen iv Musiramo and Boniface Waweru Mbiyu, also accusing Claimant's counsel of a ploy to secure higher instruction fees under Schedule 6 of the Advocates Remuneration Order. The Claimant countered that the objection was unconscionable and inconsistent with Articles 47 and 50, that jurisdiction flowed from Article 162(2) and Section 12 of the ELRC Act, and that the objection failed the Mukisa Biscuits threshold. The court found that the Claimant's salary of Kshs. 33,115 was undenied and below the gazetted threshold, so the claim ought to have been lodged in the subordinate court. The preliminary objection was allowed and the claim struck out with costs to the Respondent.

Key legal issues

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01

Jurisdiction of the ELRC over low-earning claimants

Holding

The ELRC lacks jurisdiction over employment claims where the claimant's gross monthly salary does not exceed Kshs. 80,000 by virtue of Gazette Notice No. 6024.

Reasoning

The court noted the Gazette Notice mandating that claims by employees earning 80,000/= or less be handled by the subordinate court. The claimant's pleaded salary of 33,115/= was not denied. The claim therefore ought to have been lodged in the lower court, and the preliminary objection on jurisdiction was upheld.

p. 5
02

Consequence of filing in a court without jurisdiction

Holding

A claim filed before a court without jurisdiction cannot be transferred; it must be struck out.

Reasoning

Relying on authorities cited by the Respondent (David Kabungu v Zikarenga; Gaikia Kimani Kiarie; Kagen iv Musiramo; Boniface Waweru Mbiyu), the Respondent argued a suit filed in a court bereft of jurisdiction is a nullity incapable of transfer. The court, agreeing the claim was filed in the wrong forum, struck it out rather than transferring it.

p. 5

Legal principles established

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  • Pursuant to Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018, the ELRC handles claims where the employee's gross monthly salary exceeds Kshs. 80,000; claims below that threshold must be lodged in the subordinate court.

Court orders

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  1. 1.Preliminary objection allowed
  2. 2.Claim struck out
  3. 3.Costs of the preliminary objection to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 50, 162(2)(a), 165(6)
  • Employment and Labour Relations Court ActSection 12; Section 29(3)
  • Employment Act, 2007Not specified
  • Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018Kshs. 80,000 salary threshold
  • Advocates Remuneration OrderSchedules 6 and 7

Cases cited (10)

  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    [1989] KLR 1
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors
    (1969) EA 696
  • Watson Burugu v Attorney General & 2 others
    [2021] eKLR
  • Uhuru Highway Developers Ltd v Central Bank of Kenya
    Civil Appeal No. 140 of 1995
  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
  • Gaikia Kimani Kiarie v Peter Kimani Kiramba
    [2020] eKLR
  • Kagen iv Musiramo & Another
    968 EA 4
  • Boniface Waweru Mbiyu v Mary Njeri & Another
    Nairobi HCCC No. 639 of 2005
  • Evans Kiage Onchwari v Hotel Ambassadeur, Nairobi
    [2016] eKLR
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another
    [2014] eKLR
Jurisdiction invoked
Articles 162(2)(a) and 165(6) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyandege v Ekaterra Tea Kenya Plc (Employment and Labour Relations Cause E009 of 2023) [2023] KEELRC 3351 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3351/eng@2023-12-11

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