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ELRCDismissedNotice of Motion dated 31st July 2024 (in ELRC at Nairobi)· [2025] KEELRC 237 (KLR)

Ndwiga v Promasidor Kenya Limited (Miscellaneous Application E210 of 2024) [2025] KEELRC 237 (KLR)

Employment and Labour Relations Court
31 January 2025
SRStella Rutto
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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An employment claim filed in the wrong Kenyan court because the salary exceeded Kshs 80,000 cannot be transferred — it must be withdrawn and filed afresh.

What this practically means

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Executive summary

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The Applicant, Peter Njue Ndwiga, moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 31st July 2024 seeking transfer of Mavoko Chief Magistrates ELRC Case No. E143 of 2023 to the Nairobi ELRC for hearing on a priority basis. Counsel Roy Mwenesi averred that the matter was filed in the magistrates' court in error, that both parties had erroneously acceded to its jurisdiction, and that the claimant's salary exceeded the magistrates' pecuniary limit. The Respondent opposed through Grounds of Opposition, contending that the court lacked power under Section 18 of the Civil Procedure Act to transfer a suit filed in a court without jurisdiction, that no competent suit existed capable of transfer, and that jurisdiction cannot be conferred by consent. Justice Stella Rutto isolated two issues: whether the ELRC had jurisdiction to transfer the suit, and whether discretion should favour the Applicant. Applying Gazette Notice No. 6024 of 22nd June 2018, she found the applicant's gross monthly salary at termination exceeded Kshs 80,000, so the Mavoko court lacked pecuniary jurisdiction. Following binding Court of Appeal authority (Joseph Muthee Kamau, Equity Bank v Mutie, and Phoenix of E.A. Assurance), she held that a suit filed without jurisdiction is a nullity, dead on arrival and incapable of transfer; the only remedy is withdrawal and filing afresh in the competent court. The application was disallowed with each party bearing its own costs.

Key legal issues

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01

Whether the ELRC has jurisdiction under Section 18 of the Civil Procedure Act to transfer a suit filed in a magistrates' court lacking pecuniary jurisdiction

Holding

No - a suit filed in a court without jurisdiction is a nullity and is not capable of being transferred; only transfer of a competent suit lies under Section 18

Reasoning

Relying on the Court of Appeal in Joseph Muthee Kamau and Equity Bank v Mutie, the court held that a suit filed without jurisdiction is a nullity. Transferring such a suit under Section 18 would sanctify an incompetent suit. Following Phoenix of E.A. Assurance, the applicant's only remedy is to withdraw the Mavoko suit and file a fresh, compliant claim in the ELRC, which has pecuniary jurisdiction over claims exceeding Kshs 80,000 gross monthly pay.

p. 4
02

Whether the Mavoko Chief Magistrates Court had pecuniary jurisdiction over the applicant's employment claim

Holding

No - the applicant's gross monthly salary at termination exceeded Kshs 80,000, beyond the magistrates' pecuniary jurisdiction under Gazette Notice No. 6024 of 22nd June 2018

Reasoning

The Gazette Notice limits magistrates (Senior Resident Magistrates and above) to employment disputes where gross monthly pay does not exceed Kshs 80,000. It was undisputed that the applicant's gross monthly salary at termination was above Kshs 80,000. Parties' erroneous accession to the magistrates' jurisdiction could not cure the defect, since jurisdiction cannot be conferred by consent.

p. 3

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to a competent court; the only remedy is to withdraw it and file a compliant one
  • Jurisdiction cannot be conferred by consent and must exist at the time of filing suit

Court orders

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  1. 1.The Application dated 31st July 2024 is disallowed
  2. 2.Each party shall bear its own costs
Jurisdiction invoked
Section 18 of the Civil Procedure Act (invoked for transfer of suits); Gazette Notice No. 6024 of 22nd June 2018 on pecuniary jurisdiction of magistrates' courts in employment disputes

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, "Ndwiga v Promasidor Kenya Limited (Miscellaneous Application E210 of 2024) [2025] KEELRC 237 (KLR)", Case Analysis (2025). Notice of Motion dated 31st July 2024 (in ELRC at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/237/eng@2025-01-31

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