[2023] KEELRC 2736 (KLR)

Kuria & 13 others v Kartasi Industries Limited (Cause E531 of 2022) [2023] KEELRC 2736 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2736 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E531 of 2022

B Ongaya, J

November 3, 2023

Between

John Muthandi Kuria

1st Claimant

Thomas Mutwiwa Musyoka

2nd Claimant

Kyalo Munyao

3rd Claimant

John Gitonga Githae

4th Claimant

Andrew Amunze Inyangala

5th Claimant

Mochache Omboga Denilson

6th Claimant

David Kariuki Wanjiru

7th Claimant

Mildred Nyanje Ojwang

8th Claimant

Cosmas Wambua Katuma

9th Claimant

Irene Ndunge Katua

10th Claimant

Daniel Kinyua Kigano

11th Claimant

Maxim Nyamai Mutua

12th Claimant

Nelius Wairimu Kimani

13th Claimant

Fredrick Mark Machini

14th Claimant

and

Kartasi Industries Limited

Respondent

Ruling

1. The respondent filed the application by the notice of motion dated 25. 07. 2023 through CM Advocates, LLP. The application did not cite the provisions of law under which the application was preferred and prayed for orders:a.The suit be struck out.b.The money held at Faulu Microfinance Bank, Kimathi Branch, Account No.1013838328 in the name of Owino Bukachi & Co, CM Advocates, LLP be released to the respondents.c.Costs be awarded to the applicant on a full indemnity basis.

2. The application was based upon the grounds stated therein and the supporting affidavit Maheshi Rughani, a director of the applicant. It was urged as follows:a.The amended claim dated 08. 05. 2023 is incurably defective as the Court lacks jurisdiction because the gross monthly salary of each of the claimants is below Kshs.80,000. 00 per the statement of claim.b.By reason of Gazette Notice No.6024 dated 10. 06. 2018 issued by the Chief Justice, Magistrates of the rank of Senior Resident Magistrates and above, are to hear employment matters within their respective areas of jurisdiction limited to pecuniary jurisdiction not exceeding Kshs.80, 000. 00 gross monthly salary of the claimant.c.It is prudent use of judicial time for the amended statement of claim to be struck out.

3. The claimants opposed the application by filing the replying affidavit of John Muthandi Kuria sworn on01. 09. 2023 and filed through Owino Bukachi & Company Advocates. It was urged as follows:a.The amended statement of claim dated 08. 05. 2023 is not defective because the Court enjoys jurisdiction to hear and determine the suit. The Court enjoys the original and appellate jurisdiction per Article 162(2) of the Constitution and per the Employment and Labour Relations Court Act, 2011. Section 20 of the Act provides that the Court is to ensure reasonable, equitable, and progressive access to judicial services in all counties. The Gazette Notice No. 6024 of 22. 06. 2018 conferred powers upon Senior Resident Magistrates to deal with employment matters where employees gross salary does not exceed Kshs.80,000. 00. it was per section 29 (3) and (4) (b) of the Actfor equitable and progressive access to justice across all Counties and to reduce backlog and being a subsidiary legal instrument, it could not amend the primary legislation or be inconsistent as to deny the Court the relevant jurisdiction conferred by statute and the Constitution.b.In alternative the Court therefore enjoys concurrent jurisdiction with the Magistrates Court. The suit is not incompetent because it is filed in a Court with concurrent jurisdiction or competent jurisdiction.c.The money in issue is held at the said bank account upon parties’ own consent order that the money be so held in that account until the main suit is heard and determined in circumstances that the respondent has been taken over by 3rd parties unknown to the claimants.d.The respondent has willingly subjected itself to the jurisdiction of the Court and the consent on record is true testimony in that regard.e.Thus the application should be dismissed with costs.

4. Counsel for the parties made oral submissions for and against the application. The Court has considered the parties’ respective positions and returns as follows.

5. Section 12 (1) (a) of the Employment and Labour Relations Court Act provides that the Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Act or any other written law which extends jurisdiction to the Court- relating to employment and labour relations including disputes relating to or arising out of employment between an employer and an employee. As submitted for the claimants, the Gazette notice No.6024 of 2018 is subsidiary or delegated legislation subservient to the statutory provision on jurisdiction. Accordingly, the Court returns that by the constitutional and statutory provisions the suit was filed in the Court with competent jurisdiction and cannot be liable to striking out as prayed for the respondent.

6. The Court follows and sustains the holding in Jackline Oichoe -Versus- Jilag Limited [2022] eKLR where Dr. Gakeri J held thus, “22. Contrary to submissions by the respondent’s Counsel, it is the Court’s view that while the magistrates have jurisdiction to handle employment matters where the gross salary of an employee does not exceed Kshs.80,000/- by virtue of the gazette notice, it did not take away the jurisdiction conferred on the Employment and Labour Relations Court by the Constitution of Kenya 2010 and the Employment and Labour Relations Court Act, 2011. ”In conclusion, the application filed for the respondent dated 25. 07. 2023 is hereby dismissed with costs in the cause and parties to forthwith take directions for further steps towards the expeditious hearing and determination of the suit.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS FRIDAY 3RD NOVEMBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGEPage 2 of 2