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ELRCAllowedNotice of Motion dated 26th February 2024 (in respect of CMEL Case No. E1171 of 2023)· [2024] KEELRC 2626 (KLR)

Maseki v Global Apparels Kenya EPZ (Miscellaneous Application E141 of 2024) [2024] KEELRC 2626 (KLR)

Employment and Labour Relations Court
25 October 2024
SRStella Rutto
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can transfer a wrongly-filed case to the correct local court, but the party who filed in the wrong place pays the costs.

What this practically means

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Executive summary

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By a Notice of Motion dated 26th February 2024, the Applicant sought transfer of her employment suit, CMEL Case No. E1171 of 2023, from the Chief Magistrate's Court at Milimani to Mavoko Law Courts, invoking section 3 of the ELRC Act and sections 18, 1A and 3A of the Civil Procedure Act. Her counsel, Brenda Malombo, explained that the Respondent's address in Athi River, Machakos County was only discovered upon service of summons, and that the filing at Milimani was an innocent mistake causing no prejudice. The Respondent filed a preliminary objection contending that the court lacked power to transfer a matter from a court without jurisdiction to one with jurisdiction, and relied on Owners of Motor Vessel Lilian 'S' v Caltex to argue that filing outside the Respondent's locality offended section 15 of the CPA. The Applicant filed no submissions, her filing having gone missing from the court record. The court framed two issues: its jurisdiction to order the transfer, and whether its discretion should favour the transfer. Adopting the dicta in Betty Nyamusi Machora, Justice Stella Rutto held that section 15 governs convenient forum, not jurisdiction, and the place of filing does not divest a magistrate's court of jurisdiction. She then found the cause of action arose in Athi River, that transfer would further the overriding objective and cause no prejudice, and allowed the application, transferring the suit to Mavoko Law Courts. The Applicant, having filed in the wrong court, was ordered to bear the costs of the application.

Key legal issues

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01

Whether the ELRC has jurisdiction to transfer a suit filed in a court allegedly lacking territorial jurisdiction

Holding

Section 15 of the Civil Procedure Act governs convenience of forum, not jurisdiction; filing at Milimani did not divest the magistrate's court of jurisdiction, so the preliminary objection failed.

Reasoning

Relying on the dicta in Betty Nyamusi Machora vs Betty Nyanduko Makori, the court held that a defendant dissatisfied with the place of filing should invoke section 18 of the CPA to seek transfer. The Magistrates Court Act, 2015 limits magistrates' courts by subject matter and value, not territorial jurisdiction. The Respondent's objection that transfer from a court of no jurisdiction was impossible therefore lacked merit.

p. 2
02

Whether the discretion to transfer should be exercised in favour of the Applicant

Holding

The transfer was warranted: the Respondent is situated in Athi River, Machakos County, where the employment contract was probably performed and the cause of action arose; no prejudice would result.

Reasoning

The court noted that under section 15 a suit ought properly to be filed where the defendant resides or carries on business or where the cause of action arises. The Respondent is in Athi River and, as an employment matter, the contract was likely performed there. Transferring would further the overriding objective under section 3 of the ELRC Act, be more convenient and less costly, and cause no prejudice.

p. 3

Legal principles established

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  • Section 15 of the Civil Procedure Act provides for the convenient forum of instituting a suit and does not divest a magistrates' court of jurisdiction; the place of filing does not go to jurisdiction.
  • A party seeking transfer of a suit bears the burden of providing sufficient reasons, and the transfer power is discretionary and guided by the overriding objective.

Court orders

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  1. 1.The Application dated 26th February 2024 is allowed
  2. 2.CMEL E1171 of 2023 Irene Kavithe Maseki vs Global Apparels Kenya EPZ is transferred to Mavoko Law Courts for disposal
  3. 3.The Applicant shall bear the costs of the Application
Jurisdiction invoked
Section 18 of the Civil Procedure Act (Cap 21) and Section 3 of the Employment and Labour Relations Court Act No. 2 of 2011

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, "Maseki v Global Apparels Kenya EPZ (Miscellaneous Application E141 of 2024) [2024] KEELRC 2626 (KLR)", Case Analysis (2024). Notice of Motion dated 26th February 2024 (in respect of CMEL Case No. E1171 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2626/eng@2024-10-25

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