[2021] KEELRC 522 (KLR)
The court held that the suit before the Magistrates court was properly filed in 2007 when the court had jurisdiction. The subsequent publication of Gazette Notice No. 6024 of 2018, which limited the Magistrates court's jurisdiction to claims involving salaries below Kshs. 80,000, does not operate retroactively to...
Source-derived case information.
- Citation
- [2021] KEELRC 522 (KLR)
- Parties
- Applicant: Dr. Billy George Ng’ong’a; Respondent: Maseno University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E050 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed with costs
- Judges
- CN Baari
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Magistrates Court Jurisdiction, Employment Termination Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Billy George Ng’ong’a
Applicant
Maseno University
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Magistrates court retains jurisdiction over a suit filed before the publication of Gazette Notice No. 6024 of 2018 where the claimant's salary exceeded Kshs. 80,000.
- 2 Whether the application to transfer the suit to the Employment and Labour Relations Court is merited under the current legal framework.
- 3 Whether a gazette notice can operate retroactively to affect jurisdiction over pending cases.
Ratio Decidendi
The court held that the suit before the Magistrates court was properly filed in 2007 when the court had jurisdiction. The subsequent publication of Gazette Notice No. 6024 of 2018, which limited the Magistrates court's jurisdiction to claims involving salaries below Kshs. 80,000, does not operate retroactively to divest the court of jurisdiction over cases already filed. The amendment of the claim did not amount to filing a new suit. Therefore, the application to transfer the suit to the Employment and Labour Relations Court was without merit, as the Magistrates court retains jurisdiction to hear and determine the case.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISC. APPLICATION NO. E050 OF 2021
DR. BILLY GEORGE NG’ONG’A .........APPLICANT
VERSUS
MASENO UNIVERSITY.......................RESPONDENT
RULING
1. This ruling relates to a Notice of Motion application dated 4th August, 2021, brought pursuant to the provisions of Gazette Notice No. 6024, Section 29(3) of the Employment and Labour Relations Court Act, 2011, Section 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules.
2. The Applicant seeks orders:
i. Spent.
ii. That civil suit CMCC NO. 443 OF 2007- DR. BILLY GEORGE NG’ONG’A VS MASENO UNIVERSITYbe transferred to Employment and Labour Relations Court for hearing and final determination
iii. The costs of this application be provided for.
3. The application is premised on grounds set out on the face of the application and a supporting affidavit sworn by the Applicant herein. The crux of which, is that the Applicant filed the suit subject of this application in the year 2007, before the Employment and Labour Relations Court was in place and that he filed his suit No. CMCC NO. 443 OF 2007 at the Magistrates court.
4. The Applicant deposes that he later instructed his counsel to amend his claim to include unpaid gratuity and annual leave, which remains due and owing from the Respondent from when he was terminated in the year 2009.
5. The Applicant further asserts that by dint of Gazette Notice No. 6024 of 2018, the Magistrates court now lacks jurisdiction to hear and determine his case, for reason that his salary at the time of termination was more that Kshs. 80,000/=.
6. The Applicant avers that at the time he filed his suit reference CMCC NO. 443 OF 2007at the Magistrates court, the court had jurisdiction until 10th June, 2018 when the gazette notice was published. The notice required claimants earning salary of Kshs. 80,000/= and above to file their claims at the Employment and Labour Relations Court instead of the Magistrates court.
7. The Respondent file grounds of opposition wherein, it avers that the issue of jurisdiction ought to have been raised earlier and as currently filed, the Applicant is only meant to waste the court’s time.
8. Both parties urged their matter during the hearing interparties.
Determination
9. The fact that a claim/plaint has been amended does not in itself mean the Applicant has filed a new case. The suit before court is still that which was filed in 2007. In Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, the Court of Appeal held that where a new judicial forum is created or established to replace the existing system, matters commenced under the previous system shall be heard and finalized under such forum.
10. The application to transfer ought to have been filed in the court where the suit was filed and as an application in that case instead of a new application.
11. A gazette notice has the force of law and just like any other law, does not apply retroactively. The suit before the magistrate court is properly before that court and the court has jurisdiction to hear and determine the case.
12. The court concludes that the application is without merit and is hereby dismissed with costs.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 11TH DAY OF NOVEMBER, 2021.
CHRISTINE N. BAARI
JUDGE
Appearance:
N/A for the Applicant
N/A for the Respondent
Ms. Christine Omollo -C/A