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ELRCAllowedELRC Miscellaneous Application (Mombasa); Notice of Motion dated 22/1/2024 (cause referred to: Mombasa CM ELR Cause No. E724 of 2023)· [2024] KEELRC 1784 (KLR)

Epco Builders Limited v Basho (Miscellaneous Application E007 of 2024) [2024] KEELRC 1784 (KLR)

Employment and Labour Relations Court
4 July 2024
ANAgnes Kitiku Nzei
1,192 words in judgment
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The bottom line

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Kenya's Employment Court confirmed you must sue an employer where it operates or where the dispute happened — not wherever is convenient.

What this practically means

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Executive summary

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The Applicant, Epco Builders Limited, moved the Employment and Labour Relations Court at Mombasa by Notice of Motion dated 22 January 2024 seeking a stay of proceedings in Mombasa Chief Magistrate's ELR Cause No. E724 of 2023 (Adam Hamisi Basho v Epco Builders Limited) and its transfer to the Chief Magistrate's Court at Nairobi. The application, supported by an affidavit of Bernard Owino, was premised on Section 15 of the Civil Procedure Act, contending that the Applicant carries on business in Nairobi where it is headquartered and that the cause of action - termination of the Respondent's employment at the Mavoko Affordable Housing Project - arose in Nairobi County. The Respondent opposed, deposing that his last assignment was at Mavoko in Machakos County and that the Applicant has an office in Mombasa. The court, per Agnes Kitiku Nzei J, noted that the ELRC (Procedure) Rules 2016 are silent on where to sue, so the Civil Procedure Act applies, citing Francis Kimutai Bii v Kaisungi [K] Limited. Examining the record, the court found the Applicant headquartered in Industrial Area, Nairobi, with a Mombasa branch office and a yard at Syokimau in Machakos, and that the cause of action arose at Mavoko in Machakos County. It held the Respondent ought to have sued either at Mavoko Principal Magistrate's Court or the Chief Magistrate's Court at Nairobi. The Notice of Motion was allowed, the cause transferred to Nairobi, with each party bearing its own costs.

Key legal issues

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01

Territorial jurisdiction / place of suing in employment disputes

Holding

The claimant ought to have filed the suit either where the cause of action arose (Mavoko, Machakos County) or where the defendant principally carries on business (Nairobi), not Mombasa

Reasoning

Section 15 of the Civil Procedure Act requires suits to be instituted where the defendant resides or carries on business, or where the cause of action arises. The court noted from the documents that the applicant is headquartered in Industrial Area, Nairobi, with a branch office in Mombasa and a yard at Syokimau in Machakos, and that both affidavits place the cause of action at Mavoko in Machakos County. Mombasa was thus neither forum.

p. 2

Legal principles established

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  • Where the ELRC (Procedure) Rules 2016 are silent, the court applies the Civil Procedure Act and Rules made thereunder
  • Under Section 15 of the Civil Procedure Act, in selecting where to institute a suit the defendant's location is a major consideration

Court orders

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  1. 1.Mombasa Chief Magistrate's Court Employment case No. E724 of 2023 (Adam Hamisi Basho -vs- Epco Builders Limited) transferred to the Chief Magistrate's Court at Nairobi for hearing and determination
  2. 2.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 15
  • Employment and Labour Relations Court (Procedure) Rules2016 Rules (general)
  • Industrial Court (Procedure) Rules2010 Rules (general)
  • Industrial Court Act2011 (general)

Cases cited (1)

  • Francis Kimutai Bii -vs- Kaisungi [K] Limited [2016] eKLR
    [2016] eKLR
Jurisdiction invoked
Section 15 of the Civil Procedure Act (applied by the ELRC where its own Procedure Rules are silent)

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, "Epco Builders Limited v Basho (Miscellaneous Application E007 of 2024) [2024] KEELRC 1784 (KLR)", Case Analysis (2024). ELRC Miscellaneous Application (Mombasa); Notice of Motion dated 22/1/2024 (cause referred to: Mombasa CM ELR Cause No. E724 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1784/eng@2024-07-04

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