https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1925

Nyamweya v Trinity Energy Ltd (Miscellaneous Application E006 of 2026) [2026] KEELRC 1925 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1925 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Miscellaneous Application E006 of 2026 MA Onyango, J July 2, 2026 Between Daniel Omari Nyamweya Applicant and Trinity Energy Ltd Respondent Ruling 1.Vide an application dated 19th February, 2026, the Applicant seeks the following orders:a.Spent.b.That the Honourable Court be pleased to stay any further proceedings in Eldoret MCELRC No.E096 of 2025-Omari Nyamweya vs Trinity Energy Limited pending hearing and determination of this application inter parties.c.That this Honourable Court be pleased to transfer Eldoret MCELRC No. E096 of 2025-Omari Nyamweya vs Trinity Energy Limited from the Chief Magistrates' Court to the Employment and Labour relations Court at Eldoret for hearing and determination of the matter.d.That Costs of this application be in the cause. 2.The application is supported by the grounds on the face thereof and the supporting affidavit of Daniel Omari Nyamweya, the Applicant that:a.The Applicant instituted the suit Eldoret MCELRC No. E096 of 2025-Omari Nyamweya vs Trinity Energy Limited before the Magistrates’ Court at Eldoret.b.The Applicant instituted the suit Eldoret MCELRC No. E096 of 2025 -Omari Nyamweya vs Trinity Energy Limited seeking orders for compensation for unfair and unlawful termination of the Claimant among other orders on the face of the Memorandum of Claim.c.That at the time of termination of the Claimant was earning a gross salary of Kshs. 90,000/=.d.That the Applicant's Counsel inadvertently filed the suit in the Chief Magistrate’s Court based on general pecuniary limits, overlooking the specific employment jurisdiction threshold under the Employment and Labour Relations Court Act.e.That this Honourable Court has exclusive jurisdiction over employment disputes where the gross salary exceeds KShs. 80,000. This Court has powers to grant the orders sought in the best interest of justice and fairness.f.That continued proceedings in the Magistrate’s Court would occasion a multiplicity of proceedings and prejudice the Applicant.g.That the Applicant stands to suffer irreparable harm if the transfer is not granted expeditiously.h.That it is in the interest of justice that the matter be heard and determined by the court vested with jurisdiction.i.This application has been brought promptly, without any unreasonable delay and in utmost good faith. 3.The Respondent opposed the application through the replying affidavit of Jackline Nkatha Rutere, sworn on 8th April, 2026 in which she deposes that the applicant has not come to court with clean hands as he had deliberately not disclosed to this court in his application that the Respondent filed a notice of preliminary objection against the jurisdiction of the Magistrates Court. 4.Ms. Rutere further deposed that this court lacks territorial jurisdiction to hear the Applicant’s suit under section 15 of the Civil Procedure Act as the Applicant was not at all material times employed in Eldoret and the choice of Eldoret by the Applicant is designed for forum shopping to inconvenience the Respondent. Further, that the orders sought by the applicant, if granted, would have the effect of transferring a nullity. 5.Upon service of the Replying affidavit the Applicant filed a Further Affidavit sworn on 16th April, 2026 in which he deposes that the allegations in the Replying Affidavit to the effect that he approached this court with unclean hands is untrue and misleading as the Respondent’s Preliminary Objection was filed on the same date as the instant application on 16th February, 2026 and at the time of filing the instant application the Preliminary Objection had not been served upon the Applicant or Applicant’s counsel. 6.The Applicant further deposes that at paragraph 9 of his supporting affidavit he states that he is aware that his suit Eldoret CMELRC No. E096 of 2025 Daniel Omari Nyamweya vs Trinity Energy Ltd is at risk of being dismissed for want of jurisdiction. That he attached a copy of the pleadings filed in the said suit. 7.That having disclosed the existence of the said suit and the reasons for filing the instant application, there is no non-disclosure of material information on his part. 8.The Applicant beseeches the court to invoke its inherent powers to grant the orders sought in his application as the issue whether or not the preliminary objection has been filed will not interfere with the courts powers to grant the orders sought. 9.In response to the averments in the replying affidavit to the effect that this court has no territorial jurisdiction the Applicant states that he has been advised that in employment matters suits are filed where the dispute arose. He asserts that his employment was terminated while he was working at the Respondent’s lubricant shop located along Iten Road within Uasin Gishu County. That the allegation that the suit ought to have been filed in Nairobi is therefore misleading. 10.The Applicant further deposes that the Respondent has admitted through the Replying Affidavit that upon the Applicant’s promotion to the position of a commercial sales person his work station was changed from Nairobi City to Eldoret City as averred in paragraph 5 of his Memorandum of Claim dated 25th August, 2025. 11.The Applicant deposes that it is in the interest of justice to preserve the suit through transfer to this court so as not to unduly prejudice the parties. That it is his belief that transfer of suits is an administrative function of the court to facilitate speedy disposition of the suit. He urged the court to grant the orders sought in his application. 12.The application was disposed of by way of written submissions. Both parties filed and exchanged submissions. The Applicant’s submissions are dated 29th April, 2026 while the Respondent’s submissions are dated 19th May, 2026. Analysis and Determination 13.I have considered the application, the affidavits in support and in opposition to the application and the rival submissions. The issues arising for determination are whether the suit filed by the Applicant in the Magistrates Court at Eldoret is fatally defective and incapable of being transferred by this court, and secondly, whether this court has jurisdiction to transfer Eldoret CMELRC No. E096 of 2025 Daniel Omari Nyamweya vs Trinity Energy Ltd from the Magistrates court to itself for hearing and determination. 14.Section 29 of the Employment and Labour Relations Court Act provides as follows:29.Access to justice(1)The Court shall ensure reasonable, equitable and progressive access to the judicial services in all counties.(2)For purposes of subsection (1), the Chief Justice may designate a Judge in a county as a Judge for the purposes of this Act.(3)The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving employment and labour relations in respect of any area of the country.(4)Subject to Article 169(2)(a) of the Constitution, the magistrates appointed under subsection (3) shall have jurisdiction and powers to handle—(a)disputes relating to offences defined in any Act of Parliament dealing with employment and labour relations;(b)any other dispute as may be designated in a Gazette notice by the Chief Justice on the advice of the Principal Judge. 15.Under Gazette Notice No. 6024 of 2018, magistrates (Senior Resident Magistrate rank and above) are designated as Special Magistrates to handle employment disputes. Their jurisdiction is capped at cases where the employee's gross monthly salary does not exceed Ksh. 80,000 per month. 16.The impact of section 29(3) and (4) of the Employment and Labour Relations Court Act is that this court primarily has jurisdiction to hear all employment and labour relations matters, including those referred to the Magistrates court under Gazette Notice No. 6024 of 2018 17.However, there is no consensus whether this is an administrative or legislative function. In its submissions the Applicant has cited the decision of Rika J. in Kenya Plantation and Agricultural Workers Union v Cargil Kenta Limited & another where the Judge transferred an employment matter from the magistrates’ court to this court. 18.The Applicant further referred to Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others: Public Service Commission 5 others (Interested Parties); Francis Kibugi Wanjohi v Kenya Railways Corporation (2021) KEELRC 793 (KLR), Malombo v Kibumba [2025] KEHC 8852 (KLR); Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR; Kenya Power & Lighting Company v Njumbi Residents Association & another [2015]KEHC 1094 (KLR); Equity Bank Limited v West Link Mbo Limited [2013] KECA 320(KLR); Philip Chemwolo & Another v Augustine Kubende (1986) KLR 492; Belinda Murai & Others v Amos Wainaina, as cited in Ng'ang'a & another (Suing on their own behalf & as the Administrators of the Estate of the Late Samuel Kamau Gitiria) v Shah & another KEHC 8900 (KLR); Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR; D.T. Dobie & Company (Kenya) Ltd v Muchina as cited in Gulf African Bank Limited v Atticon Limited & 4 others 2020KEHC2699(KLR) and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2013] eKLR. 19.In all these cases the courts transferred matters from Magistrates courts where the suits were filed in courts without jurisdiction. Some of the decisions are by the Court of Appeal. 20.On the other hand the Respondent has submitted that a case filed without jurisdiction is incompetent and cannot be transferred relying on the decision in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR), where the Court of Appeal (Makhandia, Ouko & M’Inoti, JJ.A.) held:“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S. 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred.” 21.It is submitted that in the same case the Court of Appeal further observed that a suit filed in a court without jurisdiction is a nullity ab initio, and whatever is a nullity is in the eyes of the law nothing. That the court cannot purport to transfer nothing and mold it into something through a procedure known as “transfer”. 22.The Respondent submits that this position was reiterated in Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service [2019] KECA 770 (KLR), where the Court of Appeal held that a suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred to another court. 23.The Respondent further referred to the decision in Joseph Njuguna Kimani v John Kimani & 4 others [2017] KEELC 2404 (K(LR), where the Environment and Land Court held that:“The suit sought to be transferred is a nullity ab initio and the High Court cannot transfer nullities to itself. The High Court has no power to order a transfer of a suit from one Court to another if the original court where the suit was filed had no jurisdiction to entertain the suit.” 24.It is the Respondent’s submission that Section 18 of the Civil Procedure Act only empowers the court to transfer a suit from one court of competent jurisdiction to another court of competent jurisdiction. That transfer under Section 18 can only be made from one court of competent jurisdiction to another court of competent jurisdiction. 25.The Respondent submits that the same principle was applied in Agnes Muloko Jackson v Serah K. Maundu & Another [2008] KEHC 3306 (KLR), where the High Court declined to grant an order for transfer of a suit filed in a court without territorial jurisdiction, holding that the pecuniary, territorial or other jurisdiction conferred on a court cannot be remedied by removal and transfer to another court. 26.The Respondent has distinguished the decisions in Kenya Plantation and Agricultural Workers Union v Cargil Kenta Limited & another and Francis Kibugi Wanjohi v Kenya Railways Corporation (2021) KEELRC 793 (KLR) while submitting that Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others is not binding on this court. 27.I am aware that the Judges in the Employment and Labour Relations Court are divided on whether or not a suit filed in a court without pecuniary jurisdiction is capable of being transferred as there have been decisions both in favour and against transfer of such cases in almost equal measure. 28.I am personally of the view and have decided so before, that this court, having primary jurisdiction in all employment and labour relations cases, has powers to transfer cases filed in error in the magistrate’s courts toto itself. 29.However, being cognizant of the fact that the Respondent is strongly persuaded that such suits are fatally defective and has backed its arguments by several decided cases, some of them from the court of Appeal, the question which of the two positions is the correct position in law can only be conclusively resolved by the Court of Appeal or the Supreme Court, and not this court. 30.At this stage, the best option to stop this matter from escalating all the way to the Court of Appeal and perhaps to the Supreme Court on account of the conflicting decisions, while risking the Applicant’s case being caught up with limitation period, is to withdraw the suit at the magistrates court and file a fresh suit in the court with requisite jurisdiction. It is my considered opinion that this would be in the best interest of all parties. 31.As to the issue of the venue for filing employment matters, Rule 6 of the Employment and Labour Relations Court (Procedure) Rules, 2024 provides:Place of suing6.(1)Proceedings before the Court shall be instituted at the Court’s registry or sub-registry with respect to the county where—(a)the claimant, petitioner or applicant, at the time of commencement of the proceedings, actually and voluntarily resides or carries on business or personally works for gain; or(b)the cause of action, wholly or in part, arises(2)The Court may, on its own motion or upon application, for recorded reasons, transfer any proceeding to the most convenient court station for hearing and determination. 32.Thus unlike the provisions of section 15 of the Civil Procedure Act which provides that suits be filed where the Defendant resides, suits in employment cases are filed where the employee resides or where the cause of action arises. 33.The cause of action in the Applicant’s case having arisen in Eldoret, Uasin Gishu County, where he was working at the time of the termination of his employment, his case is properly filed in Eldoret. Conclusion and Final Orders 34.Having reached the findings as set out above, I make the following orders:a.The Applicant to withdraw Eldoret CMELRC No. E096 of 2025 Daniel Omari Nyamweya Vs Trinity Energy Ltd and file a fresh suit in this court.b.The suit shall be withdrawn with no order as to costs as this court is persuaded that the same was filed in a court with no pecuniary jurisdiction in error and the same has not yet been heard.c.The costs in the instant application shall abide the outcome of the fresh suit to be filed by the Applicant. 35.Orders accordingly. DATED, DELIVERED AND SIGNED ON THIS 2ND DAY OF JULY, 2026.M. ONYANGOJUDGE