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ELRCAllowedMiscellaneous Application dated 26th February 2024 (in respect of CMEL Case No. E1491 of 2023)· [2024] KEELRC 2627 (KLR)

Mbom v Global Apparels Kenya EPZ (Miscellaneous Application E142 of 2024) [2024] KEELRC 2627 (KLR)

High Court of Kenya
25 October 2024
SRStella Rutto
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment suit filed in the wrong town stays valid — but the filer pays costs for the mistake.

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, Grace Akinyi Mbom, sought the transfer of her employment suit, CMEL Case No. E1491 of 2023 against Global Apparels Kenya EPZ, from the Chief Magistrate's Court at Milimani (Nairobi) to Mavoko Law Courts. Counsel for the Applicant, Brenda Malombo, explained that the filing in Nairobi was an inadvertent mistake, discovered on service, as the Respondent is situated in Athi River, Machakos County, where the cause of action arose. The Respondent opposed through a Notice of Preliminary Objection dated 25th June 2024, contending that the Court had no jurisdiction to transfer a matter from a court of no jurisdiction to a competent one, and relied on Owners of Motor Vessel Lilian "S" vs Caltex Kenya Limited, invoking Section 15 of the Civil Procedure Act on territorial jurisdiction. The Applicant filed no submissions. Justice Stella Rutto framed two issues: the Court's jurisdiction to transfer, and whether the discretion should favour transfer. Applying Betty Nyamusi Machora vs Betty Nyanduko Makori, the Court held that Section 15 provides for the convenient forum and does not divest a magistrates' court of jurisdiction; place of filing does not go to jurisdiction, so the Respondent's objection failed. On discretion, the Court found the cause of action likely arose in Athi River where the employment contract was performed, the suit ought to have been filed at Mavoko, transfer would further the principal objective under Section 3 of the ELRC Act, and no prejudice would befall the Respondent. The Application was allowed and the suit transferred to Mavoko Law Courts, with costs of the application awarded to the Respondent because the Applicant filed in the wrong court.

Key legal issues

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01

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

Holding

The High Court has jurisdiction; territorial filing under Section 15 concerns convenience of forum, not jurisdiction of the magistrates' court.

Reasoning

The court adopted the dicta in Betty Nyamusi Machora vs Betty Nyanduko Makori that Section 15 of the Civil Procedure Act provides for the convenient forum of instituting a suit and does not divest the magistrates' court of jurisdiction. A defendant dissatisfied with the place of filing should invoke Section 18 to seek transfer. The Magistrates Court Act, 2015 limits jurisdiction by subject matter and value, not territorially.

p. 2
02

Whether the court should exercise its discretion to transfer the suit to Mavoko Law Courts

Holding

The discretion was exercised in favour of transfer since the respondent resides and the cause of action arose in Athi River, Machakos County.

Reasoning

It was not in dispute that the respondent is situated in Athi River, and being an employment matter the contract was likely performed there, so the cause of action arose in that locality and the suit ought to have been filed at Mavoko. Transfer furthers the principal objective under Section 3 of the Employment and Labour Relations Court Act, and no prejudice was shown.

p. 4

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 suit ought to be instituted in a court within whose local limits the defendant resides or carries on business or where the cause of action arose, per Section 15 of the Civil Procedure Act.

Court orders

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  1. 1.The Application dated February 26, 2024 is allowed
  2. 2.CMEL E1491 of 2023 Grace Akinyi Mbom vs Global Apparels Kenya EPZ is transferred to Mavoko Law Courts for disposal
  3. 3.The Applicant shall bear the costs of the Application

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3
  • Civil Procedure Act (Cap 21)Section 18(1)(b)(i)
  • Civil Procedure Act (Cap 21)Sections 1A and 3A
  • Civil Procedure Act (Cap 21)Section 15
  • Magistrates Court Act, 2015jurisdiction provisions
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Owners of Motor Vessel Lilian "S" vs Caltex Kenya Limited
    (1998) KLR 1
  • Betty Nyamusi Machora vs Betty Nyanduko Makori
    [2018] eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act (Cap 21) - High Court's power to withdraw and transfer cases instituted in subordinate courts

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, "Mbom v Global Apparels Kenya EPZ (Miscellaneous Application E142 of 2024) [2024] KEELRC 2627 (KLR)", Case Analysis (2024). Miscellaneous Application dated 26th February 2024 (in respect of CMEL Case No. E1491 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2627/eng@2024-10-25

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