Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedMombasa ELRC Appeal (ruling of 18 April 2024 in Mombasa CMELRC E454 of 2022)

Kenga Equatorial Hotels t/a Mombasa Continental Resort v Chege (Appeal E087 of 2024) [2025] KEELRC 162 (KLR)

Employment and Labour Relations Court
30 January 2025
MMM. Mbarũ
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that employment claims above Ksh.80,000 monthly salary cannot be heard by magistrates' courts and must go to the ELRC.

What this practically means

#

Executive summary

#
The appellant (employer) appealed against a ruling delivered on 18 April 2024 in Mombasa CMELRC E454 of 2022, in which the learned magistrate dismissed its preliminary objections dated 14 November 2023 challenging the trial court's pecuniary jurisdiction. The respondent had filed a Memorandum of Claim on 1 August 2022 alleging unfair termination of his employment as Finance Manager and claiming terminal dues, pleading a monthly salary of Ksh.307,000. The employer's objections rested on Article 162(2) of the Constitution, Sections 7 and 9(b) of the Magistrates Court Act, Section 29(4)(b) of the Employment and Labour Relations Court Act and Gazette Notice No.6024 of 10 June 2018, which confers on a designated special magistrate jurisdiction only over employment disputes where the employee's gross monthly pay does not exceed Ksh.80,000. Mbarũ J held that original jurisdiction over employment disputes vests in the ELRC under Article 162(2)(a), that the Chief Justice's designation under Section 29(4) promotes access to justice under Article 48, and that on the pleaded salary the trial court lacked jurisdiction. Relying on Samuel Kamau Macharia and related authorities, the court held that jurisdiction flows only from the Constitution or law, cannot be conferred by craft, and cannot be cured by Article 159. The appeal was allowed, the ruling of 18 April 2024 was set aside, the claim was dismissed for want of jurisdiction, and costs were awarded to the appellant.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate erred in dismissing the preliminary objections challenging the court's pecuniary jurisdiction
  2. 2.Whether the trial court had jurisdiction to hear and determine the respondent's claim given his pleaded monthly salary of Ksh.307,000 and the monetary limit in Gazette Notice No.6024 of 10 June 2018

Key legal issues

#
01

Pecuniary jurisdiction of a designated magistrate over employment claims

Holding

The trial court lacked jurisdiction because the respondent pleaded a monthly salary of Ksh.307,000, far above the Ksh.80,000 cap conferred on the special magistrate under Gazette Notice No.6024 of 10 June 2018

Reasoning

Original jurisdiction over employment disputes vests in the ELRC under Article 162(2)(a) of the Constitution. Section 29(4) of the ELRC Act permits the Chief Justice to designate special magistrates for access to justice, and Gazette Notice No.6024 of 10 June 2018 limited such magistrates to claims where gross monthly pay does not exceed Ksh.80,000. Since the Memorandum of Claim pleaded a salary of Ksh.307,000, the trial court's jurisdiction was ousted by Sections 7 and 9 of the Magistrates Court Act read with the Gazette Notice. Lack of jurisdiction cannot be abrogated by Article 159 of the Constitution.

p. 3
02

Preliminary objections on jurisdiction as pure points of law

Holding

Preliminary objections on questions of law may be raised at any stage, must consist of pure points of law, and where jurisdiction is lacking, the proceedings should be terminated instantly

Reasoning

The learned magistrate correctly appreciated that preliminary objections on questions of law could be urged at any stage and must consist of pure points of law, per Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA. The objections here related purely to jurisdiction, a question of law predicated on the pleaded salary. Such questions should have terminated the proceedings before the trial court instantly, rather than being dismissed on the basis that parties should be heard under Article 159 of the Constitution.

p. 3

Legal principles established

#
  • Jurisdiction must flow from the Constitution or the law and cannot be extended by interpretation or craft
  • A claim filed before a court without jurisdiction cannot be cured by judicial craft or by reliance on Article 159 of the Constitution; such a suit must be dismissed

Court orders

#
  1. 1.The objections dated 14 November 2023 are allowed
  2. 2.The ruling delivered on 18 April 2024 in Mombasa CMELRC E454 of 2022 is set aside
  3. 3.The claim filed in Mombasa CMELRC E454 of 2022 is dismissed
  4. 4.Costs to the appellant

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC sub-registry), Mombasa
Mombasa CMELRC E454 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over rulings of designated magistrates under Section 29 of the Employment and Labour Relations Court Act; original jurisdiction over employment disputes under Article 162(2)(a) of the Constitution

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the appeal is with merit and objections dated 14 November 2023 are well-founded and are hereby allowed. The ruling delivered on 18 April 2024 is set aside.
p. 3Final orders - appeal allowed and ruling set aside
The claim filed in Mombasa CMELRC E454 of 2022 was before a court without jurisdiction and is hereby dismissed. Costs to the appellant.
p. 3Final orders - claim dismissed for lack of jurisdiction
Jurisdiction must fiow from the Constitution or the law and cannot be extended by interpretation or craft as held in Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2012] eKLR.
p. 3Source of jurisdiction
Lack of jurisdiction court not be abrogated or arrogated by application of article 159 of the Constitution.
p. 3Article 159 cannot cure want of jurisdiction

Issues in the judgment

#
minor

Internal contradiction in dates: the claim pleads employment commencing 1 October 2022 yet summary dismissal on 19 May 2022, and claim filed 1 August 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kenga Equatorial Hotels t/a Mombasa Continental Resort v Chege (Appeal E087 of 2024) [2025] KEELRC 162 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (ruling of 18 April 2024 in Mombasa CMELRC E454 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/162/eng@2025-01-30

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