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ELRCDismissedMiscellaneous Application E189 of 2026· [2026] KEELRC 2641 (KLR)

Wesonga v AAA Growers Ltd

Employment and Labour Relations Court
29 September 2026
OMOnesmus Makau
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to transfer an employment case filed in the wrong court, ruling a case filed without jurisdiction cannot simply be moved.

What this practically means

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Executive summary

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The Applicant, a former employee of AAA Growers Limited, filed a Memorandum of Claim for unlawful and unfair termination of employment seeking Kshs. 2,747,212.00 before the Chief Magistrate's Court as Cause No. E578 of 2026. He then moved the Employment and Labour Relations Court by Notice of Motion dated 17th April 2026 seeking a stay of the lower court proceedings and transfer of the file to the ELRC, contending his salary of about Kshs. 80,000 (or, per the claim, Kshs. 185,000) exceeded the magistrates' court's pecuniary jurisdiction, that the error was counsel's, and invoking Article 159(2)(d) on technicalities and section 18(1)(b) of the Civil Procedure Act. The Respondent opposed, arguing the suit filed in a court without jurisdiction was a nullity incapable of transfer, and that the Applicant had a similar application pending in the lower court, amounting to abuse of process. Relying on the Supreme Court's decision in Mumba v Munyao, which restates Kagenyi v Musiramo, Makau J held that a suit cannot be transferred unless it was first brought to a court with jurisdiction, and that parties cannot confer jurisdiction by consent. Since the Applicant admitted the lower court lacked jurisdiction, transfer was refused; counsel's knowing filing in the wrong forum had consequences. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the ELRC can transfer a suit erroneously filed in the Chief Magistrate's Court which lacked pecuniary jurisdiction

Holding

No; a suit filed in a court without jurisdiction is incapable of transfer, and counsel's error does not justify transfer.

Reasoning

The court applied the binding Supreme Court decision in Mumba v Munyao, which restates Kagenyi v Musiramo: transfer under section 18 presupposes the originating court had jurisdiction. The Applicant admitted the lower court lacked jurisdiction since his salary exceeded Kshs. 80,000. Article 159(2)(d) could not cure a jurisdictional defect going to the root of the suit.

p. 3

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was first brought to a court with jurisdiction to try it; parties cannot confer jurisdiction by consent.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 17th April 2026
  2. 2.Costs to the Respondent
Jurisdiction invoked
Section 18(1)(b) of the Civil Procedure Act invoked for transfer; ELRC jurisdiction under its statute

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, "Wesonga v AAA Growers Ltd", Case Analysis (2026). Miscellaneous Application E189 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2641/eng@2026-09-29

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