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ELRCDismissedMCELRC No. E1198 of 2024· [2025] KEELRC 254 (KLR)

Baka v Harambee Cooperative Savings & Credit Society Limited (Miscellaneous Application E279 of 2024) [2025] KEELRC 254 (KLR)

Employment and Labour Relations Court
31 January 2025
SRStella Rutto
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employee's bid to move his work dispute to the Employment Court failed because the lower court must first rule on a pending jurisdiction objection.

What this practically means

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Executive summary

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The Applicant, Leonard Ouma Baka, moved the Employment and Labour Relations Court by Notice of Motion dated 23rd September 2024 seeking transfer of his employment suit, filed inadvertently at the Chief Magistrate's Court at Milimani Commercial Courts, to the ELRC for hearing and determination. The application was grounded on Section 3(1) of the ELRC Act, Sections 1A, 1B and 18(1)(b) of the Civil Procedure Act and Article 159(2) of the Constitution, with counsel Margaret Ameka deposing that the filing in the subordinate court was a mistake that should not be visited on the claimant. The Respondent, through its Human Resources Manager Paul Kiplangat Tanui, opposed the application, contending that the ELRC Act and Rules govern transfer applications and that reliance on the Civil Procedure Act deprived the ELRC of jurisdiction; further, that the suit before the Chief Magistrate's Court was incompetent for want of pecuniary jurisdiction and limitation under Section 90 of the Employment Act, and that its Notice of Preliminary Objection on those issues remained pending and should first be heard by that court. The court framed two issues: whether reference to the Civil Procedure Act went to jurisdiction, and whether the transfer was merited. On the first, following TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel, the court held that the ELRC may borrow from the Civil Procedure Act where the ELRC Act and Rules are silent, and that mis-citation of provisions is not fatal under Article 159(2)(d). On the second, following Prisca Jepngétich, the court declined the transfer, holding the Respondent should be heard on its pending preliminary objection and that the subordinate court should not be interfered with. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether reliance on the Civil Procedure Act rather than the ELRC Act and Rules ousts the Court's jurisdiction over the transfer application

Holding

Failure to invoke the ELRC Act and its Rules does not go to jurisdiction; the Court may borrow from the Civil Procedure Act to fill lacunae, and omission to cite the correct provisions is not fatal

Reasoning

The ELRC Act and ELRC (Procedure) Rules 2024 do not expressly provide for transfer of suits instituted in a subordinate court. The court endorsed the Court of Appeal decision in TNT Express Worldwide that the ELRC may rely on Civil Procedure provisions to address gaps. Further, under Article 159(2)(d), dismissal on the ground of citing the wrong provisions would be undue technicality. The court therefore found the reference to the Civil Procedure Act did not defeat its jurisdiction.

p. 4
02

Whether the suit should be transferred from the Chief Magistrate's Court to the ELRC

Holding

The application for transfer was declined because the Respondent's Notice of Preliminary Objection on jurisdiction and limitation remains pending before the Chief Magistrate's Court and that court should be allowed to determine it without interference

Reasoning

The Applicant did not dispute that the Respondent had filed a Notice of Preliminary Objection dated 30th September 2024 pending before the Chief Magistrate's Court. Following Prisca Jepngétich v Generation Career Readiness Social Initiative Limited, the Respondent should not be denied the right to be heard on that objection. If the cause is dismissed as a nullity for want of jurisdiction, the Claimant can still file a fresh claim at the appropriate forum, so no injustice results from declining the transfer.

p. 4

Legal principles established

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  • Where there is a lacuna in the ELRC Act and ELRC (Procedure) Rules, the Court may, where necessary and in the interest of justice, borrow from relevant provisions of the Civil Procedure Act and Rules
  • An omission to cite the relevant statutory provisions is not fatal to the substance of a suit, given Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The Application dated 23rd September 2024 is declined with no orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3(1)
  • Civil Procedure ActSections 1A, 1B, 18(1)(b)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Employment ActSection 90
  • Civil Procedure RulesOrder 21 Rule 1
  • ELRC (Procedure) Rules2024 Rules (generally)

Cases cited (3)

  • TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel
    [2022] KECA 881 (KLR)
  • John Mwangi Karanja v Alfred Ndiangui
    (2011) eKLR
  • Prisca Jepngétich v Generation Career Readiness Social Initiative Limited
    [2021] eKLR
Jurisdiction invoked
Section 3(1) of the Employment and Labour Relations Court Act; Sections 1A, 1B and 18(1)(b) of the Civil Procedure Act; Article 159(2) of the Constitution

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, "Baka v Harambee Cooperative Savings & Credit Society Limited (Miscellaneous Application E279 of 2024) [2025] KEELRC 254 (KLR)", Case Analysis (2025). MCELRC No. E1198 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/254/eng@2025-01-31

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