[2024] KEELRC 13465 (KLR)

Mulavu v Sandpiper Aviation Limited (Miscellaneous Application E288 of 2024) [2024] KEELRC 13465 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEELRC 13465 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Miscellaneous Application E288 of 2024

CN Baari, J

December 19, 2024

Between

Kevin Mathau Mulavu

Applicant

and

Sandpiper Aviation Limited

Respondent

Ruling

1. The Applicant filed a motion application dated 30th September, 2024, seeking to transfer the suit between the parties herein from the Magistrates’ Court to this court for hearing and determination, on the basis that the magistrates court lacks pecuniary jurisdiction to hear and determine the suit. The Respondent in rejoinder, filed a Notice of Preliminary Objection dated 28th October, 2024 seeking the striking out of the Applicant’s motion on the premise that it is bad in law.

2. The matter came up for directions on 29th October, 2024, when the Court directed parties to file submissions on both the motion and the Preliminary Objection which are the subject of this ruling.

3. The reliefs sought under the Applicant’s motion are that the Court issues an order to transfer Nairobi Chief Magistrates MCELRC No. E086 of 2024 between Kevin Mathu Mulavu and SandPiper Limited for determination by a Judge of the Employment and Labour Relations Court, that upon the said transfer, the Court issues a date for pre-trial directions of the claim and finally that costs be in the cause.

4. Under the Preliminary Objection, the Respondent avers that the application dated 30th September 2024 is fatally defective and bad in law in so far as it seeks transfer and consequent trial and disposal of a non­ existent incompetent suit in Nairobi Chief Magistrate MCELRC No. E086 of 2024, Kevin Mulavu -vs- Sandpiper Aviation Limited from the lower Court to this Honourable Court.

5. That the lower Court having found that it lacked jurisdiction to preside over the matter and consequently dismissing the same, it ought to have downed its tools completely as per the principles established in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, and not purport to give any further directions.

6. That as a result, the matter in issue is a nullity ab initio and is not a live matter as it stands effectively dismissed, and this Honourable Court cannot therefore purport to try or dispose of the same under Section 18(1)(b)(i) of the Civil Procedure Act, and as such, the transfer and pre-trial directions orders sought by the Claimant/Applicant are ill-conceived, misguided and amount to an abuse of the Court process.

7. It is the Respondent’s argument that this Court exercises a specialized rather than a civil jurisdiction and does not therefore exercise transfer jurisdiction under the Civil Procedure Act 2010, as matters before this Court and at the Chief Magistrates' Court are both regulated.

8. Parties filed their submissions on both the motion and the Objection and which have been duly considered.

Analysis and Determination 9. I have considered both the application and the Objection, the Respondent’s Replying Affidavit and the parties’ written submissions. One issue fall for determination:-i.Whether this Court has jurisdiction to transfer a suit filed in a Magistrates Court without pecuniary jurisdiction to a Court with pecuniary jurisdiction for hearing and determination

10. On matters jurisdiction, the Court is guided by the decision of Nyarangi JA in Owners of Motor Vessel “Lilian S” –vs- Caltex Oil (Kenya) Limited 1989] where he stated thus: -“Jurisdiction is everything. Without it a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

11. The Applicant’s position is that the Hon. A. N. Ogonda delivered a ruling in Nairobi Chief Magistrates MCELRC No. E086 of 2024 between Kevin Mathu Mulavu and SandPiper Limited on 30th February, 2024, finding that she has no pecuniary jurisdiction to hear and determine the Claimant’s now Applicant’s claim.

12. It is the Applicant’s assertion that the Honourable Magistrate did not strike out the suit upon finding that she did not have jurisdiction, but instead, directed the Claimant to move this court to have the matter transferred for determination by a Judge of the ELRC.

13. The Respondent on their part, assert that the lower Court having found that it lacked jurisdiction to preside over the matter and consequently dismissing the same, it ought to have downed its tools completely in accordance with the principles established in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, and not purport to give any further directions.

14. In considering an application to transfer such as that sought in the instant application, the court is under duty to confirm existence of a competent suit for purposes of the transfer. In the case of Meeli Ole Naisewa –vs- Benson Gachuki Kinyanjui [2016] eKLR the court opined thus on transfer of suits: -“I consider that under the provisions of Section 18, before the procedure and order of transfer is resorted to, the court must satisfy itself whether there is a competent suit in the original court capable of being tried and disposed of. The relevant things to be considered by the court in determining jurisdiction being the facts as deposed in the plaint, affidavit and statement of claim served upon the defendant. The basis of this being that it is the plaintiff who in the determination of his rights invokes the jurisdiction of the court conferred by the constitution and statute. It is important to bear in mind that the issue of my decision is whether the application as it stands has merits to enable me make an order of transfer. The application was therefore to be tested whether the court from which the suit is being transferred had jurisdiction.”

15. Under the Magistrates’ Act, the Magistrates pecuniary jurisdiction is limited to handling employment and labour-related cases where the salary of the employee does not exceed Kshs.80,000/=.

16. The Applicant’s net salary as at termination, and which figure is not disputed is Kshs. 500,000. This amount is beyond the pecuniary jurisdiction of the court where the suit was filed.

17. In the case of Equity Bank Limited –vs- Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR the Court of Appeal observed thus: -“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 Section 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. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court, would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer.

18. Similarly, in Abraham Mwangi Wamigwi –vs- Simon Mbiriri Wanjiku & Another [2012] eKLR, it was held: -“It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognised by law.”

19. This court further notes that in the ruling rendered by the lower court, the Honourable Magistrates indicated in no uncertain terms that “this court downs its tools for lack of pecuniary jurisdiction”. By this decision/finding, the suit before her was as dead as a dodo and the fact that the court proceeded to direct the parties to move this court for transfer, does not breathe life into the claim.

20. In whole, I find and hold that for reason that the Magistrates court did not have pecuniary jurisdiction to handle the matter whose transfer is being sought herein, there is no competent suit for this court to transfer.

21. Accordingly, the Application dated 30th September, 2024 is incompetent and is hereby dismissed, and the Preliminary Objection by the Respondent succeeds.

22. Parties shall bear their own costs of both the application and the objection.

23. It is so ordered.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19THDAY OF DECEMBER, 2024. C. N. BAARIJUDGEAppearance:Mr. Leibor Present for the ApplicantMr. Ogutu present for the RespondentMs. Esther-CA