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ELRCOtherIntended appeal from MC ELRC Cause No. 5 of 2022, Kisii Chief Magistrate's Court· [2024] KEELRC 519 (KLR)

Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Limited & another (Employment and Labour Relations Appeal E004 of 2023) [2024] KEELRC 519 (KLR)

Employment and Labour Relations Court of Kenya
5 March 2024
1,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nakuru refused to decide a late-appeal request, sending it instead to Kisumu, the court with the right territorial jurisdiction.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (Hellen Wasilwa, J) dealt with a Notice of Motion dated 26th October 2023 by the Kenya Union of Commercial Food and Allied Workers, the intended Appellant, seeking leave to appeal out of time against the judgment of the Magistrate's Court at Kisii in MC ELRC Cause No. 5 of 2022 delivered on 12th September 2023, in which the grievants were awarded only 21 days worked in January 2016 without the claimed overtime, leave days, public holidays and rest days. The Union attributed the delay in filing the appeal (the time lapsed on 11th October 2023) to the time taken to trace the grievants across the country to obtain instructions. The Respondent opposed, arguing the court lacked territorial jurisdiction since the primary suit had originated in ELRC Kisumu (Kisumu ELRC Cause No. 91 of 2017) before transfer to Kisii, that the Applicant was forum shopping, and that the delay was inordinate and unexplained, relying on Kenya Revenue Authority v Habimana and the Hawkind Corporation decision. The Applicant countered that related transferred files were pending before Nakuru. Without resolving the merits of the extension of time, the court held it was unclear why the application was filed in Nakuru when the applicable jurisdiction was Kisumu, and transferred the application to ELRC Kisumu for consideration and further directions, with costs in the appeal.

Key legal issues

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01

Territorial jurisdiction of the ELRC Nakuru over an intended appeal from a Kisii magistrate's court suit originally filed in ELRC Kisumu

Holding

The court found the application was filed in the wrong forum and transferred it to ELRC Kisumu

Reasoning

The Applicant argued that related transferred files were pending before Nakuru, but the court was not persuaded. Noting the suit originated in ELRC Kisumu before transfer to Kisii on pecuniary jurisdiction, the judge found it unclear why Nakuru was chosen and opted for transfer rather than dismissal or determination of the leave application.

p. 4
02

Leave to appeal out of time

Holding

Not determined on the merits; the application was transferred for consideration by ELRC Kisumu

Reasoning

Although the Applicant attributed the delay to tracing the grievants across the country, and the Respondent urged inordinate unexplained delay relying on Kenya Revenue Authority v Habimana, the Nakuru court did not rule on the explanation for delay, leaving that question to the transferee court.

p. 4

Legal principles established

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  • Where an applicant files an extension-of-time application in a court lacking territorial jurisdiction over the intended appeal, the proper course is to transfer the application to the court with territorial jurisdiction rather than to determine it on the merits.

Court orders

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  1. 1.Transfer of the application to ELRC Kisumu for consideration and further directions
  2. 2.Costs in the appeal
On appeal from
Magistrate's Court at Kisii (CM's ELRC)
MC ELRC Cause No. 5 of 2022
Jurisdiction invoked
Order 51 Rules 1 & 3 of the Civil Procedure Rules, Sections 3, 3A and 95 of the Civil Procedure Act, and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules 2016; question of territorial jurisdiction arose from transfer of the primary suit from ELRC Kisumu to the Kisii Magistrate's Court

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 Union of Commercial Food and Allied Workers v Kisii Bottlers Limited & another (Employment and Labour Relations Appeal E004 of 2023) [2024] KEELRC 519 (KLR)", Case Analysis (2024). Intended appeal from MC ELRC Cause No. 5 of 2022, Kisii Chief Magistrate's Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/519/eng@2024-03-05

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