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ELRCDismissedELR Cause No.6 of 2020 (application dated 19th October, 2020)· [2020] KEELRC 8 (KLR)

Ruth Muthoni Mwangi v Kenya Meat Commission [2020] KEELRC 8 (KLR)

Employment and Labour Relations Court
22 December 2020
MMM. Mbaru
1,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A case filed in the wrong Kenyan court cannot simply be moved to the right one — the wrong court must first declare it invalid.

What this practically means

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Executive summary

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The applicant, formerly employed by the Kenya Meat Commission as an Accounts Assistant, was interdicted in June 2015 following criminal charges at the Anti-Corruption Court. She filed ELR Cause No.6 of 2020 at the Machakos Chief Magistrate's Court challenging a backdated letter of summary dismissal dated 26th June, 2015. The respondent filed preliminary objections dated 28th September, 2020 contending that the cause of action arose at Athi River, that the Machakos court lacked geographical jurisdiction, and that the cause was incompetent contrary to section 90 of the Employment Act. Rather than await the ruling on those objections, the applicant, on the advice of registry staff, filed the present application seeking transfer of the suit to Mavoko Law Courts. The respondent opposed, arguing forum shopping, abuse of process, and that a suit filed without jurisdiction is a nullity incapable of transfer. The court identified a single issue: whether the transfer should be ordered. Applying Boniface Waweru Mbiyu v Mary Njeri, which endorses Kagenyi v Musiramo, the court held that a matter filed before a court lacking jurisdiction is incompetent, void and a nullity, with no capacity to be transferred; the court before which it is first brought must declare its status. The court further held that the Machakos court must be allowed to determine the pending preliminary objections on their merits, and that the transfer application subverted the rule of law. The application dated 19th October, 2020 was dismissed as an abuse of court process, with costs to the respondent.

Key legal issues

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01

Whether a suit filed in a court without geographical jurisdiction can be transferred to the correct court

Holding

No. A suit filed before a court lacking jurisdiction is a nullity with no capacity to be transferred; the court before which it is filed must declare it a nullity.

Reasoning

Relying on Boniface Waweru Mbiyu v Mary Njeri, the court held that filing before a court without jurisdiction is a fundamental professional error not excusable as ordinary counsel mistake, potentially giving rise to a tort claim against the advocate. The matter is incompetent and void and cannot be transferred. The proper course was for the Machakos court to determine the pending preliminary objections on the merits.

p. 2
02

Whether the transfer application was an abuse of court process

Holding

Yes. It was filed to circumvent the preliminary objections pending before the Machakos Magistrates Court.

Reasoning

The respondent had filed preliminary objections challenging the geographical jurisdiction of the Machakos court and compliance with section 90 of the Employment Act. The Machakos court had to be allowed to address those objections and make its own independent ruling; allowing transfer would subvert the rule of law and not achieve the ends of justice.

p. 2

Legal principles established

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  • A suit filed before a court lacking jurisdiction is a nullity, incompetent and void, and cannot be transferred to another court; the court before which it is first brought must declare its status as a nullity
  • A party cannot circumvent preliminary objections on jurisdiction pending before a court by seeking transfer of the file on the advice of registry staff

Court orders

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  1. 1.Application dated 19th October, 2020 dismissed as an abuse of court process
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (2)

  • Boniface Waweru Mbiyu versus Mary Njeri & another
    [2005] eKLR
  • Kagenyi v. Musiramo
    null
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations causes; transfer application under the court's procedure following the Chief Justice's Legal Notice No.6024 of 10th June, 2018 appointing Special Magistrates

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruth Muthoni Mwangi v Kenya Meat Commission [2020] KEELRC 8 (KLR)", Case Analysis (2020). ELR Cause No.6 of 2020 (application dated 19th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/8/eng@2020-12-22

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