Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedAppeal dated 27th June, 2023 (Milimani Chief Magistrates Court Employment Cause No. 1555 of 2019)

Maitha v National Bank of Kenya Ltd (Appeal E113 of 2023) [2024] KEELRC 2187 (KLR)

Employment and Labour Relations Court
6 September 2024
2,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal in the Employment and Labour Relations Court against the ruling of Honourable Wendy K Micheni (CM) delivered on 9th June 2023 in Milimani Chief Magistrates Court Employment Cause No. 1555 of 2019, upholding the Respondent's preliminary objection on pecuniary jurisdiction and dismissing the Appellant's suit with costs. The Appellant, whose last gross salary was Kshs 318,083.00 - well above the Kshs 80,000 subordinate court limit - had filed his claim in 2019 alleging variation of loan interest rates contrary to the Respondent's policy on exiting members of stafi. Counsel attributed the wrong filing to an innocent mistake, applying a predominance test. The appeal was disposed of by written submissions. The court, treating the matter as a first appeal and applying Selle v Associated Motor Boat Company Limited, framed one issue: whether the reliefs sought could issue. It noted that on 12th April 2022 the trial court had directed parties to fix the matter before a competent court, and that the Respondent immediately filed its preliminary objection, which the court found was not done in good faith, possibly to await the lapse of the three-year limitation period under section 90 of the Employment Act. Holding that mistakes of advocates should not be visited on innocent clients, and that no superior court decision prohibits transfer of a suit filed in a wrong forum, the court allowed the appeal. It set aside the trial court's orders of 9th June 2023, transferred the suit to the ELRC in Nairobi, and ordered the Appellant to pay the Respondent the costs of the preliminary objection in the court below at lower court rates, with no orders as to costs of the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the reliefs sought by the Appellant can issue.

Key legal issues

#
01

Whether the reliefs sought by the Appellant (setting aside the ruling dismissing the suit and transfer of the suit to the ELRC) could issue

Holding

The appeal succeeded; the trial court's orders were set aside and the suit transferred to the ELRC because dismissal would have irredeemably time-barred the claim under section 90 of the Employment Act and no superior court decision prohibits such transfer.

Reasoning

The court found the trial court had itself directed the parties on 12th April 2022 to fix the matter before a court of competent jurisdiction, and the Respondent immediately filed a preliminary objection, which the court found was not done in good faith. Since the suit was filed in 2019 and the 3-year limitation period under section 90 of the Employment Act had lapsed by 2022, dismissal would bar a fresh suit. The court held mistakes of advocates should not be visited on innocent clients, and that doing justice leans toward preserving the suit where no compensable prejudice is shown to the Respondent.

p. 5

Legal principles established

#
  • A suit filed in a court without pecuniary jurisdiction, where dismissal would time-bar the claimant under section 90 of the Employment Act, can be transferred to the court with jurisdiction in the interest of justice.

Court orders

#
  1. 1.The Orders of the trial court of June 9, 2023 are hereby set aside.
  2. 2.The suit being Milimani CMEL No. 1555/2019; David Kimanthi Maitha V National Bank of Kenya Ltd be and is hereby transferred to the Employment and Labour Relations Court in Nairobi for hearing and determination.
  3. 3.The appellant shall pay the respondent the costs of the Preliminary Objection in the Court below to be agreed upon or assessed at Lower Court rates

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrates Court
Employment Cause No. 1555 of 2019
Jurisdiction invoked
Appellate review of a first appeal from the Chief Magistrate's Court, invoking section 3 of the Employment and Labour Relations Act (Oxygen principles) and section 12(3)(viii) of the Employment and Labour Relations Court Act together with Article 159 of the Constitution

Relief refused

#

Costs of the appeal to the Appellant

The appeal succeeded with no orders as to costs on the appeal itself; the only costs ordered were those of the preliminary objection in the court below, payable by the Appellant.

p. 5

Costs

No orders as to costs of the appeal; the appellant shall pay the respondent the costs of the Preliminary Objection in the Court below, to be agreed upon or assessed at Lower Court rates.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Orders of the trial court of June 9, 2023 are hereby set aside.
p. 5Final orders - setting aside the trial court's ruling
The suit filed by the Appellant against the Respondent being Milimani CMEL No. 1555/2019; David Kimanthi Maitha V National Bank of Kenya Ltd be and is hereby transferred to the Employment and Labour Relations Court in Nairobi for hearing and determination.
p. 6Final orders - transfer of the suit to the ELRC
there is no clear decision of a superior court prohibiting the transfer of a suit filed in wrong court to a court of competent jurisdiction. The matter is therefore left to doing justice to the situation which leans more on preserving the suit than dismissal on a ground that would not occasion prejudice to the respondent not compensable by costs.
p. 5Preservation of suits filed in wrong forum where no prejudice is occasioned
This court notes that this move was not done in good faith by the Respondent who barred the Appellant from making the necessary steps to have the matter transferred to the ELRC as directed by the trial court.
p. 4Respondent's conduct in raising the preliminary objection
the trial court ought not to have entertained the Respondent's PO after it gave its directions unless it confirmed that its directions of 12th April,2022 were not followed by the Appellant.
p. 5Trial court's error in entertaining the preliminary objection after its own directions
the court appreciates that mistakes of advocates should not be meted on innocent clients and that the courts should lean more towards doing justice in any case provided no prejudice would be occasioned to the other party.
p. 5Mistakes of counsel and doing justice

Issues in the judgment

#
minor

The conclusion contains an apparent typographical error in the costs sentence, reading 'no orders as follows' where 'no orders as to costs' appears intended.

minor

The judgment cites section 12(3)(viii) of the Employment and Labour Relations Court Act in the Appellant's submissions but quotes Justice Onyango referring to section 12(3)(vii).

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maitha v National Bank of Kenya Ltd (Appeal E113 of 2023) [2024] KEELRC 2187 (KLR)", Case Analysis (2024). Appeal dated 27th June, 2023 (Milimani Chief Magistrates Court Employment Cause No. 1555 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2187/eng@2024-09-06

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