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ELRCPartially AllowedELRC at Kericho, Notice of motion dated 18th April 2023· [2024] KEELRC 73 (KLR)

Kenya Plantation & Agricultural Workers Union v Eastern Produce (K) Limited (Miscellaneous Application E003 of 2023) [2024] KEELRC 73 (KLR)

Employment and Labour Relations Court
30 January 2024
HWHellen Wasilwa
2,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court ruled that trade union cases belong in the Employment and Labour Relations Court, not magistrates' courts, and transferred this one to Eldoret.

What this practically means

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Executive summary

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The Claimant/Applicant, a trade union, moved the Employment and Labour Relations Court at Kericho by notice of motion dated 18 April 2023 seeking transfer of Kapsabet CMCC No. 2 of 2022 to the ELRC at Kericho. The claim, previously transferred from Kericho ELRC No. 011 of 2022 to the subordinate court by Justice Makau on 25 May 2022, concerned a grievant dismissed allegedly for negligence causing loss of the Respondent's property; the grievant earned Kshs 15,965 gross monthly. The Applicant argued that Gazette Notice No. 6024 of 2018 excludes trade disputes under the Labour Relations Act, 2007 from magistrates' jurisdiction, and that this dispute was a trade dispute - the union had referred it to a conciliator in 2021 - so the subordinate court lacked jurisdiction. The Respondent opposed, contending the dispute was a simple employment contract matter within the Kshs 80,000 pecuniary cap, not a trade dispute, and that the ELRC Kericho lacked territorial jurisdiction since the cause of action arose at Nandi Hills. The court, Wasilwa J, held that the Gazette Notice confers jurisdiction on magistrates only for employment contract disputes excluding trade disputes, and that because the claim was filed by a trade union - a creature of the Labour Relations Act - the magistrates were ousted from hearing it. The application was allowed and the claim transferred to the ELRC at Eldoret, the court with territorial jurisdiction over Nandi Hills, for further directions and disposal. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the dispute is a trade dispute excluded from the magistrates' jurisdiction under Gazette Notice No. 6024 of 2018

Holding

The claim filed by a trade union is a trade dispute under the Labour Relations Act and therefore outside the magistrates' designated jurisdiction; it must be handled by the ELRC

Reasoning

Gazette Notice No. 6024 of 2018 empowers magistrates of the rank of SRM and above to hear employment contract disputes where gross monthly pay does not exceed Kshs 80,000, but expressly excludes trade disputes under the Labour Relations Act, 2007. The claimant is a trade union, a creature of that Act, and the dispute had been referred to a conciliator. Filing by a union therefore ousts the magistrate's jurisdiction, notwithstanding the grievant's salary of Kshs 15,965.

p. 5
02

Whether the application for transfer should be allowed

Holding

The application was allowed and the claim transferred to the ELRC Eldoret, not Kericho

Reasoning

Having found the subordinate court lacked jurisdiction, the court found the application merited. However, since the cause of action arose at Nandi Hills within the ELRC Eldoret's territorial jurisdiction, the claim was transferred to Eldoret rather than Kericho as sought.

p. 5

Legal principles established

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  • Where a claim is filed by a trade union, it falls under the Labour Relations Act and is excluded from the jurisdiction conferred on magistrates by Gazette Notice No. 6024 of 2018

Court orders

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  1. 1.Transfer of the claim from the Chief Magistrate's Court Kapsabet Law Courts to the ELRC Eldoret for further directions and disposal
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(5)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 18 & 63(e)
  • Civil Procedure RulesOrder 51 rule 1
  • Labour Relations ActSections 62-72; section 73
  • Gazette Notice No. 6024 of 2018General
  • Employment and Labour Relations Court (Procedure) Rules, 2016General

Cases cited (2)

  • Benta Achieng Odinyo v University of Nairobi
    [2021] eKLR, Appeal No. 30 of 2020
  • AVC Management Limited vs Emmanuel Mwamunye Jilani
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution of Kenya, 2010; sections 1A, 1B, 3, 3A, 18 & 63(e) of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules

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, "Kenya Plantation & Agricultural Workers Union v Eastern Produce (K) Limited (Miscellaneous Application E003 of 2023) [2024] KEELRC 73 (KLR)", Case Analysis (2024). ELRC at Kericho, Notice of motion dated 18th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/73/eng@2024-01-30

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