[2020] KEELRC 1453 (KLR)
The Employment and Labour Relations Court lacks jurisdiction to hear appeals concerning malicious prosecution, as such matters do not fall within its statutory mandate. The appeal was erroneously transferred from the High Court to the E&LRC without the appellant's participation. The court held that the proper forum...
Source-derived case information.
- Citation
- [2020] KEELRC 1453 (KLR)
- Parties
- Appellant: Charles Simba; Respondent: National Cereals and Produce Board; Respondent: The Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Appeal 5 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction and Transfer of Appeal
- Outcome
- Appeal transferred to the High Court for hearing and determination.
- Judges
- MN Nduma
- Legal Topics
- Malicious Prosecution, Jurisdiction, Transfer of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Simba
Appellant
National Cereals and Produce Board
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction and Transfer of Appeal
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear an appeal concerning malicious prosecution.
- 2 Whether the appeal was properly transferred from the High Court to the Employment and Labour Relations Court.
- 3 What is the appropriate forum for hearing the appeal on malicious prosecution.
Ratio Decidendi
The Employment and Labour Relations Court lacks jurisdiction to hear appeals concerning malicious prosecution, as such matters do not fall within its statutory mandate. The appeal was erroneously transferred from the High Court to the E&LRC without the appellant's participation. The court held that the proper forum for the appeal is the High Court, where it was initially filed. The appellant cannot be penalized for the court's administrative error. Consequently, the appeal is to be transferred back to the High Court for hearing and determination.
Court Disposition
Appeal transferred to the High Court for hearing and determination.
Orders
- The appeal is transferred back to the High Court, Kisumu, as HCC Civil Appeal No. 78 of 2017.
- The appeal to be mentioned before the presiding judge, High Court Kisumu, for directions.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
APPEAL NO. 5 OF 2018
(Before Hon. Justice Mathews N. Nduma)
CHARLES SIMBA.................................................................................APPELLANT
VERSUS
NATIONAL CEREALS AND PRODUCE BOARD ....................1ST RESPONDENT
THE ATTORNEY GENERAL......................................................2ND RESPONDENT
[Appeal arising from the Judgment and Decree of Hon. ONZERE E.M. SRM in Tamu SRMCC NO. 12 of 2017)
RULING
1. The respondent has raised a preliminary objection against the Appeal filed at the Employment and Labour Relations Court against a judgment of Hon. Onzere delivered at Tamu law courts on 31st October 2017. That the E&LRC lacks jurisdiction to entertain or transfer the Appeal to any other court, the subject matter of the case being malicious prosecution over which E&LRC lacks jurisdiction. That the Appeal be struck out with costs.
2. The Appellant has objected to the preliminary objection on the basis that the Appellant filed the appeal on 24th November 2017 before Kisumu High Court, being HCCA NO. 78 of 2017. That it is manifestly clear from the stamp affixed to the said Appeal which reads “High Court Civil Registry Kisumu, 24th November 2017. Received” that it was filed at the High Court.
3. The presiding judge then, after perusing the said appeal thought that the same should be forwarded to the E&LRC. That the Appeal was erroneously, transferred to the E&LRC without participation of the Appellant. That this being the case, the E&LRC simply needs to take the Appeal back to where it was filed as it was wrongly subsequently designated as E&LRC, Civil Appeal No. 5 of 2018.
Determination
4. The court is satisfied that the subject matter of the suit determined by Hon. Onzere E.M. by a judgment delivered on 31st October 2017 is malicious prosecution. The subject matter did not comprise mixed grill case which has an element of Employment and labour issues at the same time raising matters of malicious prosecution.
5. From the pleadings and judgment in the Appeal record, this was a pure malicious prosecution case, which belongs to the High Court.
6. Accordingly, the Appeal was transferred by the presiding judge from the High Court to E&LRC in error. The Appellant cannot be punished for an error of the court to which he did not contribute.
7. The Appeal is thus transferred back to the High Court, where it was initially filed as HCC at Kisumu Civil Appeal No. 78 of 2017 for hearing and determination. The Appeal to be mentioned before the presiding judge, High Court Kisumu for directions.
Ruling Dated, Signed and delivered this 4th day of March, 2020
Mathews N. Nduma
Judge
Appearances
Josiah Abobo and Company for Appellant
J.O. Juma Advocate for the Respondent.
Attorney General Chambers – Kisumu.
Chrispo – Court Clerk