Jian v Shanxi Dikuang Overseas Engineering Construction (Kenya) Limited (Employment and Labour Relations Miscellaneous E451 of 2025) [2026] KEELRC 1362 (KLR) (21 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC MISCELLANEOUS APPLICATION NO. E451 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **FENG JIAN……………………………................................APPLICANT** **VS** **SHANXI DIKUANG OVERSEAS ENGINEERING CONSTRUCTION(KENYA) LIMITED.........................RESPONDENT** **RULING** 1. The Applicant filed a Notice of Motion application dated 31ST October 2025 seeking ORDERS THAT: - 2. *THAT this Honourable Court be pleased to transfer Milimani MCELRC/E1025/2025 Feng Jian v Shanxi Dikuang Overseas Engineering Construction (Kenya) Limited from the Chief Magistrates Court to the Employment and Labour Relations Court at Nairobi for hearing and determination of the matter;* 3. *THAT the costs of this Application be in the cause.* **Applicant’s Case** 1. The Applicant avers that upon filing the claim before the Chief Magistrate’s Court, he presumed that the matter fell within the pecuniary jurisdiction of the said Court whose monetary jurisdiction he understood to be Kshs. 20,000,000. He states that the value of the claim is USD 52,430.92 equivalent to Kshs. 6,711,040, therefore, in his understanding, fell within the prescribed pecuniary limit. 2. The Applicant further states that he later came across the decision in [***Ndwiga v Promasidor Kenya Limited [2025] KEELRC 237 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/237/eng%402025-01-31)where the Court held that the pecuniary jurisdiction of the Chief Magistrate’s Court in employment matters is Kshs. 80,000 salary per month pursuant to Gazette Notice No. 6024. He asserts that he was unaware of the said pecuniary limit at the time of filing the claim and takes responsibility for the oversight. 3. It is the Applicant’s case that the Chief Magistrate’s Court lacks pecuniary jurisdiction to hear and determine the matter as the value of the subject matter exceeds the set pecuniary limit applicable to employment and labour matters before the subordinate court. 4. The Applicant contends that this Court has jurisdiction to transfer the matter to itself and hear it to its logical conclusion and that the transfer sought is an administrative process meant to give effect to the constitutional dictate that disputes once filed ought to be heard and determined on merit. 5. The Applicant contends that the error committed by counsel should not be visited upon the Claimant who is a layman and relied on counsel’s professional expertise. He pleads with this Court to allow the application for transfer so that he may have his day in Court and have his claim heard on merit as the dues sought are substantiated. 6. It is further the Applicant’s case that the Respondent admitted employing the Claimant and that it is only the Court that can determine the dues payable to the Claimant. 7. The Applicant finally avers that the application was brought without unreasonable delay and implores this Court to allow the application and accord the Applicant an opportunity to ventilate the claim before the proper forum. **Respondent’s Case** 1. In opposition to the application, the Respondent filed Grounds of Opposition dated 18th December 2025 on the following grounds: 2. *THAT this Honourable Court lacks jurisdiction to transfer an incompetent suit from the lower Court under the provisions of Section 18 of the Civil Procedure Act.* 3. *THAT there is no competent suit in existence that is capable of being transferred to this Honourable Court, as the suit filed in the subordinate Court, namely Milimani MCELRCC No. E1025 of 2025, Feng Jian vs Shanxi Dikuang Overseas Engineering Construction (Kenya) Limited, is a nullity ab initio.* 4. *THAT Parties cannot, even by their consent, confer jurisdiction on a Court where no such jurisdiction exists.* 5. *THAT the instant Application is incapable of being granted, as it is founded on a fatally defective suit.* 6. *THAT the Application is frivolous, vexatious, scandalous, and otherwise an abuse of the Court process and ought to be dismissed with costs to the Respondent.* **Applicant’s Submissions** 1. It is the Applicant’s submissions that the suit herein was inadvertently filed at Milimani CMELRC/E1025/2025 before a court whose pecuniary jurisdiction in employment and labour matters is limited to Kshs. 80,000 per month as per Kenya Gazette Notice No. 6024. However, the Claimant earned a monthly salary of USD 2,500 equivalent to Kshs. 322,032., which is above the magistrate’s court jurisdictional limit. 2. The Applicant submitted the filing of the matter in the subordinate court was an inadvertent oversight by counsel and that the same ought not to be visited upon the innocent litigant. 3. It was submitted that the Respondent stands to suffer no prejudice as it will still have an opportunity to present its case, and therefore this Court ought to be guided by Article 159(2)(d) of the Constitution which requires courts to administer justice without undue regard to procedural technicalities. Reliance was placed on ***Philip Chemolo & Another vs Augustine Kubede [1982 -88] KLR 103 at 1040***: *“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit.”* 4. It is the Applicant’s submissions that courts should not be overly constrained by procedural technicalities and reliance was placed on ***Moses Mwicigi & 14 Others v IEBC & 5 Others [2016] eKLR*** where it was held that procedure is not an end in itself and justice should be administered without undue regard to procedural technicalities as provided under Article 159(2)(d) of the Constitution. 5. He submitted that Section 18 of the Civil Procedure Act empowers this Court to transfer suits from subordinate courts and that such transfer is an administrative process aimed at ensuring matters are heard to conclusion. Reliance was placed on [***JOHN MWANGI KARANJA v ALFRED NDIANGUI [2011] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2011/4323/eng%402011-05-12) where it was held that transfer of suits is a procedural issue intended to ensure matters are determined in the proper forum and in line with the overriding objective under Sections 1A and 1B of the Civil Procedure Act. 6. It was further submitted that the Respondent’s objection on jurisdiction is misplaced as the issue of jurisdiction in the present case does not arise since jurisdiction is only limited to the handling of the suit to a just conclusion on merit but not in transferring of the same. The mandate to transfer a suit is only an administrative function of this Court. The Respondent cited [***Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2020] KEHC 2971 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2971/eng%402020-09-21)where the Court held that transfer of suits is an administrative matter aimed at facilitating speedy disposal and not a jurisdictional issue capable of rendering proceedings null. 7. The Applicant further relied on [***Francis Kibugi Wanjohi v Kenya Railways Corporation [2021] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/793/eng%402021-10-08): *“In view of the above, it is my finding that adopting the proposal by the Respondent would go against the above provisions. The Applicant would be forced to file new pleadings. This would force him to pay court fees again. He would then incur costs of serving the Respondent again. It could get worse. If the claim is now time-barred, the Claimant’s case will have been dismissed without him having his day in court even though he approached the Court timeously. This, in my view, goes against the above provisions and the emerging jurisprudence that cases ought to be heard and determined on the merits. The upshot is that the instant application succeeds.”* 8. It is the Applicant’s submissions that this Court should exercise its discretion under Section 18 of the Civil Procedure Act, Article 159(2)(d) of the Constitution and the overriding objective to allow the application and transfer the suit to this Court for determination on its merits. **Respondent’s Submissions** 1. The Respondent submitted on four issues: whether this Honourable Court has jurisdiction to transfer an incompetent suit; whether there exists a competent suit capable of being transferred; whether parties can confer jurisdiction upon a court by consent; whether the Application is an abuse of the court process. 2. On the first issue, the Respondent submitted that Section 18 of the Civil Procedure Act cannot be invoked to sanitise or breathe life into proceedings that are null and void. Reliance was placed [***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/250/eng%402016-10-14)where the Court of Appeal held that it would be illegal to transfer a suit filed in a court lacking jurisdiction as no competent suit exists capable of transfer, and that allowing such transfer would muddle the waters and create confusion. 3. It is the Respondent’s submission that this Court lacks jurisdiction to transfer a suit that is incompetent ab initio. It submitted that jurisdiction is everything, and without it, a court must down its tools as established in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd.*** 4. On the second issue, the Respondent submitted that the suit before the subordinate court, Milimani MCELRC No. E1025 of 2025, was filed without jurisdiction and is therefore a nullity from inception, incapable of being salvaged or transferred. They cited [***Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/767/eng%402019-05-10) where it was held that a suit filed without jurisdiction is “dead on arrival” and the only remedy is to withdraw and file a proper suit before a court with jurisdiction. 5. The Respondent submitted that the transfer can only be made where the suit was competently instituted. The purported suit is therefore non-existent in law and incapable of being transferred to this Court. 6. On the third issue, the Respondent submitted that jurisdiction cannot be conferred by consent, waiver, acquiescence, or the overriding objective; this was affirmed in [***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/250/eng%402016-10-14). 7. It was further submitted that even if the parties were to consent to transfer, such consent would be legally inconsequential as parties cannot clothe a court with jurisdiction where none exists. 8. On the final issue, the Respondent submitted that the Application amounts to an abuse of the court process as it seeks to cure a fundamentally defective suit through procedural manoeuvres, thereby inviting this Court to exercise jurisdiction where none exists. 9. It was submitted that the Application is frivolous, vexatious, and scandalous, and that courts have consistently frowned upon attempts to circumvent jurisdictional requirements through transfer applications. 10. I have considered all the averments and submissions of the parties herein. The applicant seeks transfer of the (MELRC E1025/25 from the Chief Magistrate’s Court to this court citing pecuniary jurisdiction of the CM’s court in relation to the claim. 11. In considering this application, I refer to this courts original jurisdiction embedded in the constitution under article 162 (2)(a) which establishes this court as a court to hear all labour and employment matters and thereafter the ELRC Act 2018 at section 12 which sets out the jurisdiction of the court. 12. The import of this provision is that the original jurisdiction of this court cannot be ceded due to a pecuniary caveat. There may be an error where a party files a land matter in an employment court. However, in this matter, the claimant filed an employment cause in CM’S court and the only point of departure is with the CM’s pecuniary jurisdiction. 13. This court is ultimately called upon to render justice and it would be an injustice for the court to turn its eye aside and deny the applicant the prayer sought due to an error on pecuniary jurisdiction. 14. I therefore exercise my discretion in favour of the application and allow the applicant to transfer the cause in the lower court to this court for hearing and disposal. Costs in the cause. **Dated, Signed and Delivered Virtually at Nairobi this 21st Day of May, 2026.** **HELLEN WASILWA** **JUDGE**