[2018] KEHC 6774 (KLR)
The High Court determined that Section 18 of the Civil Procedure Act does not empower it to transfer a case from a subordinate court to the Employment and Labour Relations Court, as both the High Court and the Employment and Labour Relations Court are courts of equal status. Since the dispute falls under the...
Source-derived case information.
- Citation
- [2018] KEHC 6774 (KLR)
- Parties
- Applicant: John Kariuki Njoka; Respondent: Secretary Board of Governor; Respondent: Chairman BOG
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed with costs
- Judges
- FN Muchemi
- Legal Topics
- Transfer of Suits, Jurisdiction of Courts, Employment Disputes
- 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
John Kariuki Njoka
Applicant
Secretary Board of Governor
Respondent
Chairman BOG
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court has jurisdiction to transfer a suit from the Chief Magistrate's Court to the Employment and Labour Relations Court.
- 2 Whether Section 18 of the Civil Procedure Act empowers the High Court to transfer cases to courts of equal status.
Ratio Decidendi
The High Court determined that Section 18 of the Civil Procedure Act does not empower it to transfer a case from a subordinate court to the Employment and Labour Relations Court, as both the High Court and the Employment and Labour Relations Court are courts of equal status. Since the dispute falls under the jurisdiction of the Employment and Labour Relations Court, neither the Chief Magistrate’s Court nor the High Court has jurisdiction to hear or transfer the matter. The proper course for the applicant is to withdraw the suit from the magistrate’s court and file a fresh suit in the court of competent jurisdiction. Consequently, the application for transfer was dismissed for lack of...
Court Disposition
application dismissed with costs
Orders
- The application dated 9/01/2017 is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. 1 OF 2017
JOHN KARIUKI NJOKA..................................................PLAINTIFF
VERSUS
SECRETARY BOARD OF GOVERNOR...........1ST RESPONDENT
CHAIRMAN BOG…….…………….…….....….2ND RESPONDENT
R U L I N G
1. This is an application dated 9/01/2017 seeking for orders for transfer of Embu CMCC No. 58/2016 to Nyeri Industrial Court for hearing and determination.
2. It is supported by the affidavit of the applicant John Kariuki Njoka who states that the matter falls within the jurisdiction of the Industrial Court and that he filed the matter in the Chief Magistrate’s court for lack of knowledge.
3. It is further stated that the matter is fresh and that this court has the mandate to transfer the same to the right court.
4. The application was opposed by the respondent in his grounds of opposition dated 28/03/2017. It is argued that the application is misplaced, improper, strange and is clearly wrong and that the inherent jurisdiction in this court under Section 3A of the Civil Procedure Act is wrongly cited. The respondent states that the suit is incompetent and that this court cannot rightly transfer the same.
5. The power to transfer suits is donated to the High Court by virtue of Section 18 of the Civil Procedure Act which provides that:-
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage –
(a) Transfer any suit, appeal or other proceedings pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) Withdraw any suit or other proceedings pending in any court subordinate to it, and thereafter –
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.
6. The provision does not empower the High Court to withdraw and transfer a case from the subordinate court to the Employment and Labour Relations Court (formerly known as Industrial Court) or to any court of equal status. Both parties are in agreement that the dispute falls under the Employment and Labour Relations Court. For this reason the Chief Magistrate’s court and this court have no jurisdiction to hear and determine the dispute. It therefore follows that neither the High Court nor the Chief Magistrate’s court has the mandate to withdraw and transfer the said suit.
7. This application falls outside the ambit of Section 18 of the Act. I reach a conclusion that this court has no jurisdiction to grant the orders sought. The right thing for the applicant to do is to withdraw the suit in the magistrate’s court and file a fresh suit in a court of competent jurisdiction.
8. I find that the application lacks merit and it is hereby dismissed with costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 3RD DAY OF MAY, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
1. Applicant present in person
2. Mr. Guantai for Mr. Ithiga for respondents