Wesonga v AAA Growers Ltd

3. The Motion is supported by the Adavit sworn by his Advocates one Irene Otto on 17th April 2026 and 18th May 2026. It is opposed by the Respondent through a Replying Adavit sworn on 19th May 2026 by Relei Raymond Advocate. The Motion was canvassed by written submissions. Applicant’s case 4. The Applicant contended that his salary was about Kshs. 80,000.00 and therefore the suit was erroneously led in the lower court. He contended that the error was by counsel and it should not be visited upon him. He shielded himself behind Article 159(2)(d) of the Constitution which obliges courts to administer justice without undue regard to technicalities. 5. He contended that the counsel based his choice of the court on the Pecuniary Jurisdiction of the lower court as opposed to the gross salary. He urged the court to allow the motion since the suit raises weighty issues of unlawful termination of employment. 6. He submitted that ling a suit before a wrong forum does not necessarily deprive the High Court the jurisdiction to regularize proceedings under Section 18(1)(b)of the Civil Procedure Rules. He contended that the wording of section 18(1)(b) is broad and discretionary and does not exclude matters where Pecuniary Jurisdiction is contended. 7. To emphasize the above submissions reliance was placed on the Halbury’s Laws of England, and several local judicial precedents. Respondent’s case 8. The Respondents contended that the Motion is incompetent, misconceived, frivolous, vexation and an abuse of the process of the court. It argued that the Applicant has led a similar application before the lower court seeking similar orders and it is still pending. 9. It maintained that the suit was led before the lower court instead of this court which has the necessary jurisdiction. It argued that a suit led before a court without jurisdiction is a nullity and not capable of being transferred to another court. Consequently, it urged the court to dismiss the motion with costs because it lacks jurisdiction to transfer the suit since it was incompetent ab initio. 10. It averred that section 18 of the Civil Procedure Act is inapplicable of this matter since the suit was instituted in a court without jurisdiction. It contended that the motion is intended to sanitize defective proceedings and therefore it does not meet the legal threshold for granting the orders sought. 11. It submitted that where a court lacks jurisdiction the defect goes to the root of the proceedings and renders the entire suit void. For emphasis, reliance was placed on the Supreme Court decisions in Mumba and 7 others v. Munyao and 148 others [2019] KESC 83 (KLR) and Milly Glass Works Ltd v. Kenya Railways Corporation and another [2025] KESC 26 (KLR). 12. Finally, the Respondent submitted that the Applicant’s ling of multiple motions in dierent courts seeking similar orders is abuse of the process of the court. For emphasis, reliance was placed on the case of Sea Star Malindi Limited v Kenya Wildlife Services, Kenya Commercial Bank and another (Garnishee) [2023] KEELRC 5579 (KLR) where the court held that ling of multiple proceedings seeking similar reliefs amounts to abuse of the court process. Determination 12. There is no denial that the Applicant has led Cause No. E573 of 2026 in the lower court which lacks the necessary jurisdiction to determine the same since the Applicant’s salary was above the limit of https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2641/eng@2026-09-29 2

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Kshs. 80,000.00 per month. The issue for determination is whether the court should correct that error by ordering transfer of the suit to itself. 13. In the case of Mumba and 7 others v Munyao and 148 others supra, the Supreme Court held that: “ However, as it was well elucidated in the case of Kagenyi v Musiramo and another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the rst instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a court/tribunal where it is not provided by law.” 14. The above decision is binding on me. Since the Applicant has admitted that the lower court has no jurisdiction to determine the suit, I decline the request to transfer the suit from the Lower Court. The Applicant’s counsel knowingly led the suit before a court without jurisdiction and must bear the consequence of doing that without due diligence. 15. I will not belabor the point since it is clear that the suit is not capable of being transferred. Consequently, I dismiss the Notice of Motion dated 17th April 2026 with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Otto for Applicant Peter for Onyambu for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2641/eng@2026-09-29 3

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