Maitha v National Bank of Kenya Ltd (Appeal E113 of 2023) [2024] KEELRC 2187 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the reliefs sought by the Appellant can issue.
Key legal issues
#Whether the reliefs sought by the Appellant (setting aside the ruling dismissing the suit and transfer of the suit to the ELRC) could issue
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.
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.
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.The Orders of the trial court of June 9, 2023 are hereby set aside.
- 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.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.
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.
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.
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.
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.
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.
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.
Issues in the judgment
#The conclusion contains an apparent typographical error in the costs sentence, reading 'no orders as follows' where 'no orders as to costs' appears intended.
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.