[2023] KEELRC 3351 (KLR)

Nyandege v Ekaterra Tea Kenya Plc (Employment and Labour Relations Cause E009 of 2023) [2023] KEELRC 3351 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3351 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kericho

Employment and Labour Relations Cause E009 of 2023

HS Wasilwa, J

December 11, 2023

Between

Donald Nyandege

Claimant

and

Ekaterra Tea Kenya Plc

Respondent

Ruling

1. The claimant sued the Respondent for alleged unfair termination. He states that he was employed by the Respondent in 1995 and confirmed on permanent terms in 1996 until 20th April 2023 when he was dismissed from his employment. That during the Twenty-Seven (27) years, the Claimant has been performing his duties diligently and no allegation of misconduct or claim has ever been lodged against him until the instant matter.

2. He stated that he was terminated from employment on 20th April, 2023 without being subjected to disciplinary hearing and for unsubstantiated cause. At the time of termination, the claimant was earning monthly salary of Kshs. 33, 115/=

3. The Respondent entered appearance on the 21st July, 2023 and filed a Response to claim om 2nd August, 2023 and then raised a Preliminary Objection dated 11th August, 2023 on the 18th August, 2023.

4. The preliminary objection is based on the following grounds; -1. That the Claimant's suit has no merit, is frivolous, bad in law and ought to be dismissed with costs.2. That the claim is fatally defective and filed in bad faith as this Honourable Court lacks jurisdiction to determine and grant reliefs.3. That to hear the matter would go contrary to the Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018 which expressly mandates this Honourable Court to only handle matters where the Claimant earns a gross salary of over Kshs. 80,000. 4.That the Claimant earned a gross monthly salary of Kshs. 33,115 per month which is less than Eighty thousand Kenyan Shillings (80,000) at the time of his termination.5. That under the doctrine of exhaustion, this Honourable Court is only mandated to handle appeals and claims where the employee earned a gross salary of over Kshs. 80,000 and as it stands, the instant suit is incompetent and therefore incapable of transfer.6. That this court has no jurisdiction to hear and determine this matter by virtue of the aforementioned provisions.7. That the suit is therefore an abuse of the court process and is for striking outex debito justitiaewith costs as it is meant to embarrass the Respondent.

5. Directions were taken for the preliminary objection to be canvassed by written submissions with the Respondent filling on the 25th September, 2023 And the claimant filed on 11th October, 2023.

6. This Ruling is therefore in respect to the said preliminary objection.

Respondent’s Submissions. 7. The Respondent submitted that it raised a Notice of Preliminary Objection for reasons that the Claimant earned a gross monthly salary of Kshs. 33,115, notwithstanding the fact that this Court is expressly mandated to only handle matters where the Claimant earns a gross salary of over Kshs. 80,000 as provided for by the Gazette Notice No. 6024 (Vol CXX No. 74) dated 22nd June 2018. Therefore, that this court has no jurisdiction to handle the matter and the fact of the matter being brought before a court bereft of jurisdiction makes the suit incompetent, incapable of transfer and therefore ripe for striking out ex debito Justitiae with costs to the Respondent.

8. On the law on preliminary Objection, the Respondent cited the celebrated Court of Appeal decision in Owners of Motor Vessel “Lillian S” v Caltex Oil Ken a Limited [1989] KLR 1, where it was stated thus;“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it a Court has no power to make one more step.”

9. It was argued that for a Preliminary Objection to be maintained, it must raise pure points of law that sprout from the pleadings. He added that the essence of a preliminary objection was given by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors(1969) EA 696. At page 700, where Law, JA stated that:“...preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

10. The Respondent submitted on the Gazette Notice No. 6024 Vol CXX No. 74 and stated that the Chief Justice in the quest to reduce backlog at the Employment and Labour Relations Court and in exercise of powers of an employee under Section 29(3) of the Employment and Labour Relations Court Act, conferred jurisdiction on Magistrates of the rank of Senior Resident Magistrate and above to hear and determine disputes arising from contracts of employment where the employee's gross monthly salary did not exceed Kshs.80. 000/-. In support of the said position, they cited the decision by Justice Korir in Watson Burugu v Attorney General & 2 others[2021]eKLR, where the learned Judge held that Gazette Notice No, 6024 (Vol CXX No. 74) dated 22nd June 2018 confers jurisdiction properly and is in tandem with constitutional and legal requirements. As such, failure to abide by the Gazette Notice essentially invalidates the suit for lack of jurisdiction.

11. Accordingly, that the instant suit was filed before this Court despite knowing that this Court did not have jurisdiction. He argued that the aim of the counsel in this matter was to eventually secure a transfer of the suit to the subordinate Court and in the end gain higher costs under Schedule 6 of the Advocates Remuneration Order rather than utilizing Schedule 7. This especially applies to instruction fees and other charges up to date. Therefore, that the filling of this suit in this court is a deliberate ploy by Counsel not only to mislead the Court but also to unjustly enrich themselves and rob the Respondent. He added that this practice has been rampant in this Court and therefore urged this Court to take action to stop it.

12. To emphasize on their argument, the Respondent relied on the Court of Appeal in Uhuru Highway Developers Ltd v Central Bank of Kenya Civil Appeal No. 140 of 1995 where the court held:“The courts must be able to protect themselves from parties who are prepared to deceive, whatever their motive for doing so may be, and whatever the merits of the case may be. A man who Is prepared to deceive a court in granting him an Order cannot validly claim that he has a meritors case and would have been entitled to the orders anyway. If a case is meritorious, there can be no reason for the concealing some of them from court”.

13. It was submitted further that since the suit was filed in a court that has no jurisdiction, the suit becomes a nullity and transfer therefrom is not feasible. To support this, they relied on the case of David Kabungu v Zikarenga & 4 others Kampala HCCs No. 36 of 1995, where the Court held that;“Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer Could be refused......"

14. To reinforce this position, they cited the case of Gaikia Kimani Kiarie v Peter Kimani Kiramba [2020] eKLR where the court held that:“jurisdiction is everything and without jurisdiction the Court has no option but to down its tools. It is not in doubt that though the powers to order transfer are discretionary, however, a matter can only be transferred if the Court from which the Applicant is seeking to have the matter transferred from had jurisdiction over the said matter and the Applicant has satisfied the Court that the transfer is necessary.”

15. They further relied on the case of Kagen iv Musiramo & Another 968 EA 4, Sir Udo Udoma, CJ made it clear that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it.

16. He also cited that the decision of J B Ojwang. J (as he then was) in the Boniface Waweru Mbiyu v Mary Njeri & Another Nairobi HCCC No. 639 of 2005, where the Judge expressed himself as follows:“The entry point into any Court proceeding is jurisdiction. If a Court lacking jurisdiction to hear and determine a matter overlooks that fact and determines the matter, its decision will have no legal quality and will be a nullity... Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court”.

17. Based on the foregoing, it was submitted that this Honourable Court has no jurisdiction to handle the matter as the Claimant earned a gross monthly salary of Kshs. 33,115 per month. Consequently, that since the Court does not have jurisdiction, it cannot transfer the suit and thus must down its tools and take no further steps.

18. In conclusion, the Respondent urged this Court to uphold its Preliminary Objection and the suit be dismissed with costs to the Respondent.

Claimant’s Submissions. 19. The claimant submitted from the onset that the Respondent’s preliminary objection is unconscionably impermissible, null and void and inconsistent with the provisions of Articles 47 and 50 of the Constitution and cited the case of Evans Kiage Onchwari v Hotel Ambassadeur, Nairobi [2016] eKLR by Ndolo J.

20. It was submitted that the supervisory jurisdiction of the High court under Article 165(6) is unlimited, whereas that of the Employment and Labour Relations Court is limited by the Employment Act, 2007, which governs relationship between employers and employees.

21. He agreed that jurisdiction flows from the Constitution and Statutes and that a court cannot abrogate itself that which is not given by law. He argues that this court derives jurisdiction from Article 162 (2) of the Constitution and Section 12 of the ELRCAct.Similarly, that this case relates to and arises out of an employment dispute as envisaged under Section 12 of the Act, it follows that this court has jurisdiction. In this he relied on the case of Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another [2014] eKLR where the Judge stated that“The Ex parteapplicant concludes by requesting the court to transfer the suit to the High court should it uphold the preliminary objection, instead of striking it out.”

22. To further buttress its position that this court has jurisdiction, the Claimant submitted that Jurisdiction is conferred by the Constitution or Statute or both and may be limited or unlimited in like manner. He quoted the case of Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [1989] Eklr, where the Court stated:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before It. 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

23. He further argued that Article 162 (2) (a) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations. Therefore, that pursuant to Article 162 (2) (a), Parliament passed the Employment and Labour Relations Court Act, which in addition to establishing the court, sets out the jurisdiction of the court as provided for under Section to gives powers to this court to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution.

24. He argued further that its trite that a Preliminary objection consists of a point of law as held in the case of Mukisa Biscuit Manufacturing Company v West End Distributors Limited [1969] EA, but that the preliminary objection raised herein has failed to meet that threshold.

25. In conclusion, it was submitted that the subject matter is an Employment issues as such this Court is clothe with the jurisdiction to heard and determined it on merit. In light of the above, he urged this court to dismiss the Preliminary objection for lacking in merit.

26. I have examined the averments and submissions of the parties herein.

27. The preliminary objection raised by the applicant respondent herein is premised on issue of jurisdiction by virtue of Gazette Notice No. 6024 (CXX No.74) dated 22nd June 2018 by which the Hon. CJ mandated that in cases where the salary of the claimant does not exceed 80,000/= the subordinate court shall be clothed with jurisdiction to handle the matter.

28. In the claim filed before me, I note that the claimant avers that his salary at the time of termination was 33,115/=. The claimant has not denied this fact.

29. By virtue of the said gazette Notice then, this claim ought to have been lodged in the lower court.

30. The claimant having filed this claim before this court erred and therefore I find the preliminary objection meritorious and I allow this application and strike out this claim with costs.

RULING DELIVERED VIRTUALLY THIS 11TH DAY OF DECEMBER, 2023. HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:-Kamau for RespondentChelangat holding brief for Maengwe for the Claimant