[2011] KEHC 2037 (KLR)
The court found that the dispute between the applicant and respondent is an employment matter falling within the exclusive jurisdiction of the Industrial Court as provided by section 87(2) of the Employment Act, 2007. Although the suit was initially filed in the Chief Magistrate's Court before the new Act came into...
Source-derived case information.
- Citation
- [2011] KEHC 2037 (KLR)
- Parties
- Applicant: Julius Gicheru Njoroge; Respondent: Nyeri Plantations
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 23 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Transfer Suit to Industrial Court
- Outcome
- motion allowed
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Employment Termination, Delay in Filing, Terminal Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Gicheru Njoroge
Applicant
Nyeri Plantations
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Transfer Suit to Industrial Court
Legal Issues
- 1 Whether the Chief Magistrate's Court has jurisdiction to hear an employment dispute filed before the enactment of the Employment Act, 2007.
- 2 Whether the suit should be transferred to the Industrial Court under section 87(2) of the Employment Act, 2007.
- 3 Whether the delay in filing the motion to transfer is inordinate and prejudicial.
Ratio Decidendi
The court found that the dispute between the applicant and respondent is an employment matter falling within the exclusive jurisdiction of the Industrial Court as provided by section 87(2) of the Employment Act, 2007. Although the suit was initially filed in the Chief Magistrate's Court before the new Act came into effect, the law now vests exclusive jurisdiction in the Industrial Court. The respondent's main objection was the alleged delay in bringing the motion to transfer, but the court held that the delay was not inordinate, especially since the relevant law came into effect after the suit was filed and the motion was prompted by a preliminary objection on jurisdiction. The court...
Court Disposition
motion allowed
Orders
- The suit Nyeri C.M.C.C. No. 25 of 2005 is withdrawn from the Chief Magistrate's Court and transferred to the Industrial Court for hearing and determination.
- Costs of the motion to abide the determination of the suit at the Industrial Court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. CIVIL APPLICATION NO. 23 OF 2010
JULIUS GICHERU NJOROGE.............................................................................................APPLICANT
Versus
NYERI PLANTATIONS.......................................................................................................RESPONDENT
RULING
The subject matter of this ruling is the motion dated 24th February 2010 in which Julius Gicheru Njoroge, the Applicant has sought to have Nyeri C.M.C.C. no. 25 of 2005to be withdrawn from the Chief Magistrate’s and transferred to the Industrial court for hearing and determination. The motion is supported by the affidavit of Charles Wahome Gikonyo, learned advocate for the Applicant. Nyeri Plantations the Respondent herein, filed the replying affidavit of Mercy Kabethi, their learned advocate resist the motion.
It is the submission of the Applicant that under s. 87(2) of he Employment, 2007 the Industrial Court is the relevant court to hear and determine the suit. The respondent urged this court to dismiss the application on the basis that the same was filed too late in the day and only after the Respondent had raised a preliminary point of law. I have carefully looked at the material placed before this court. the suit that is before the Chief Magistrate’s court is expressed in the amended plaint dated 20th January 2009 whereupon the Applicant who is the Plaintiff in the Chief Magistrate’s court sought for judgment against the Respondent (defendant therein) in the following terms:
(a)Terminal benefits in the sum of Kshs. 29,511/=
(b)Costs of the suit.
(c) Interest on (a) and (b) above.
The Applicant averred that the Respondent had without notice and without adhering with the provisions of Regulation of wages (protective security services) order applicable, terminated his services. It is obvious that the dispute before the Chief Magistrate’s court is thatbetween an employee and an employer. The competent court with exclusive jurisdiction hear and determine such a dispute is the Industrial court under section 87(2) of the employment Act no. 11 of 2007. The aforesaid Act came into effect on 2nd June 2008. the suit before the Chief Magistrate’s Court was filed in the year 2005. by then an aggrieved party had a right to file a complaint or suit before any magistrate’s court under section 40 of the Employment Act (Cap. 226 L.O.K.) the Respondent does not dispute that the Industrial court is the competent forum to hear and determine the suit. Its main complaint is that there was in ordinate delay in filing the motion. I have already stated that the relevant law conferring exclusive jurisdiction to the Industrial to hear labour disputes came into effect on 2nd June 2008. the Respondent has also complained that the Applicant was provoked to file the motion by the notice of Preliminary objection dated 12th November 2009 in which it prayed the suit to be dismissed because the Chief Magistrate’s court had no jurisdiction to hear and determine the dispute. I doubt whether such a preliminary objection could have even been sustained in view of the provisions of section 4 of the Employment Act (Cap. 226 L.O.K). Though there was some delay in filing the motion, in my view the delay is not inordinate.
In the end I find the motion to be well founded. The same is allowed with costs abiding the determination of the suit at the Industrial court.
Dated and delivered this 15th day of July 2011.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Maatura for Respondent and Karweru h/b Wahome for Applicant.
J.K. SERGON
JUDGE