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IndustrialAllowedNotice of Motion dated 22nd August 2014 (seeking transfer of CMCC 5042 of 2006)

Mandal v Stangy Boyz Promotions T/A Sound Asia (Miscellaneous Application 87 of 2014) [2014] KEIC 96 (KLR)

Industrial Court (Employment and Labour Relations Court)
17 December 2014
NMNzioki Wa Makau
1,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that an employment suit first filed in a magistrates' court can be transferred to it, even years after filing.

What this practically means

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Executive summary

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The Applicant, by Notice of Motion dated 22nd August 2014 premised on Section 87(1) and (2) of the Employment Act, Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010, sought the transfer of CMCC 5042 of 2006, pending before the Chief Magistrates Court, to the Industrial Court. The Applicant, who filed suit on 12th May 2006 before the enactment of the Employment Act 2007, argued through Miss Jemator that the Respondent would suffer no prejudice from the transfer. The Respondent, through Mr. Kalove, opposed the application, contending that it was made inordinately late (some two years after a 30-day window), that two witnesses had already testified, that the Magistrate had already declined to see a basis for transfer, that no employee-employer relationship existed as the Claimant was paid on commission, and that the application was an abuse of process. The Court, Nzioki Wa Makau J, framed the sole question as whether the suit ought to be transferred. Relying on Daniel N Mugendi v Kenyatta University & 3 others, the Court held that at the time of filing, the proper forums were the Industrial Court tribunal or the magistrates' court, and that filing in the magistrates' court first was not fatal. Finding that the Magistrate could not transfer the suit himself and invoking the interests of justice, the Court ordered the transfer of CMCC 5042 of 2006 to the Industrial Court for hearing and determination, with directions on the alleged bias and part-heard evidence to be addressed after transfer. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the suit pending before the Chief Magistrates Court (CMCC 5042 of 2006) ought to be transferred to this Court for hearing and determination

Key legal issues

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01

Whether a suit filed in the magistrates' court before the enactment of the Employment Act 2007 and the Industrial Court Act 2011 can be transferred to the Industrial Court

Holding

Yes - the claimant could originally seek redress in the magistrates' court or the Industrial Court tribunal, and the subsequent establishment of the Industrial Court does not render the suit non-transferable; filing in the magistrates' court first is not fatal.

Reasoning

The suit was filed on 12th May 2006 when the Employment Act 2007 and Industrial Court Act 2011 were not in force; the applicable law was the Employment Act Cap 226 and the repealed Trade Disputes Act. The proper forum was either the Industrial Court tribunal or the magistrates' court. Applying Mugendi v Kenyatta University by parity of reasoning, transfers between courts of equal status serve the interests of justice.

p. 3

Legal principles established

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  • Courts of equal status should transfer matters among themselves where a matter ought to be litigated in another court, in the interest of justice and harmonization

Court orders

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  1. 1.Transfer of CMCC 5042 of 2006 from the Chief Magistrates Court to this Court for hearing and determination
  2. 2.Parties to address the Court on the issue of perceived bias once the file is transferred and listed for Directions

The bench

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

NM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution; Section 87(1) and (2) of the Employment Act; Section 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules 2010

Quotable passages

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

It is prudent to have the matter now pending before the Magistrates Court transferred to this Court for hearing and determination and I do so order.
p. 3Transfer order
In the final result I order the transfer of CMCC 5042 of 2006 to this Court for hearing and determination.
p. 3Final orders - disposition
The fact that the Applicant went to the Magistrates Court first is not fatal to the Claim.
p. 3Choice of forum not fatal to claim

Issues in the judgment

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minor

The Respondent's name is never stated in the judgment; the judgment refers only to 'the Respondent' and identifies the supporting affidavit by the Applicant's advocate, David Mukii Mereka.

minor

Conflicting accounts of the ruling by Hon. Ole Keiwua PM: the Respondent said he held there was no basis for transfer, while the Applicant said he held he had no jurisdiction to transfer.

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, "Mandal v Stangy Boyz Promotions T/A Sound Asia (Miscellaneous Application 87 of 2014) [2014] KEIC 96 (KLR)", Case Analysis (2014). Notice of Motion dated 22nd August 2014 (seeking transfer of CMCC 5042 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/96/eng@2014-12-17

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