https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2120

Otina v Solution & 2 others (Employment and Labour Relations Cause E1029 of 2025) [2026] KEELRC 2120 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2120 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E1029 of 2025 HS Wasilwa, J July 23, 2026 Between Wilson Okello Otina Claimant and Puzzle Sales Solution 1st Respondent Afrofit Fitness Management Limited 2nd Respondent Nawruz Ochieng Opondi 3rd Respondent Ruling 1.In opposition to the Claimant’s Memorandum of Claim dated 23rd October 2025, the 1st and 3rd Respondent filed a Notice of Preliminary Objection dated 14th January 2026 on the following grounds:1.That this Honourable Court lacks jurisdiction to handle this Claim.2.That pursuant to Gazette Notice No. 6022 of 2018 of 22nd June 2018, disputes arising from contracts of employment (excluding trade disputes under the Labour Relations Act, 2007) where employees gross monthly pay does not exceed Ksh. 80,000/= are handled in the Magistrates’ Courts by Magistrates with the rank of Senior Resident Magistrates and above.3.That the Claim should therefore be struck out and/ or dismissed with costs. 2.Additionally, the 2nd Respondent filed a Notice of Preliminary Objection dated 26th January 2026 on the grounds that:1.The Statement of Claim indicates that the disputed contract of service concerns a gross monthly salary of KES 40,000/-. Accordingly, this Honourable Court lacks the necessary pecuniary jurisdiction to hear and determine this claim, in accordance with Gazette Notice No. 6024 of 2018, dated 22nd June 2018. Claimant’s Case 3.In opposition to the Respondents’ Notices of Preliminary Objection, the Claimant filed Grounds of Opposition dated 6th March 2026, wherein he prays that the Preliminary Objections be dismissed with costs, or in the alternative, this Court be pleased to transfer the suit to the Chief Magistrate’s Court (Employment and Labour Division) for hearing and determination on the following grounds of law:1.That the Preliminary Objection fails the test of a "pure point of law" as established in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969), where the Court held that a Preliminary Objection should consist of a point of law which, if argued as a preliminary point, may dispose of the suit.2.That the Respondents’ objection is not dispositive of the suit but merely challenges the forum; as such, it is a procedural technicality that cannot be used to extinguish a cause of action that is otherwise viable.3.That the jurisdiction of this Honourable Court is sanctioned under Article 162(2)(a) of the Constitution. Therefore, Gazette Notice No. 6024 of 2018 is a secondary instrument of administrative convenience meant to expand access to justice, and it cannot be interpreted to oust the inherent and original jurisdiction of the ELRC to hear employment disputes.4.That the Court of Appeal in Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd emphasized that jurisdiction is everything, but where a court has general jurisdiction over the subject matter (employment), a pecuniary mismatch is a curable irregularity under the "Oxygen Principle” found in Section 3 of the ELRC Act.5.That under Article 159(2)(d) of the Constitution, justice shall be administered without undue regard to procedural technicalities. Striking out the claim would be a disproportionate remedy for a matter that can be resolved via a Transfer Order to the Magistrate’s Court.6.That as per the ruling in Nyeri Chief Magistrates’ Court -vs- Daniel Gachira (2016), the proper course of action for a court faced with a pecuniary jurisdiction challenge is to transfer the file to a court of competent jurisdiction to avoid the "revolving door" of litigation and unnecessary costs.7.That the Preliminary Objection is a tactical maneuver to shut the doors of justice on the Claimant and offends the spirit of Article 48 regarding the right to access justice. 1st and 3rd Respondents’ Submissions 4.On whether the Preliminary Objection raised a pure point of law, the Respondents submitted that it is settled law that a preliminary objection must raise a pure point of law without requiring the Court to ascertain contested facts. They cited Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, as approved in Oraro v Mbaja [2005] eKLR, to argue that the objection met the threshold of a proper preliminary objection. 5.It was submitted that their objection challenged the jurisdiction of the Court, which is a pure question of law. In support, they relied on Mukisa Biscuit, where the Court stated: “So far as I am aware, a 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…” 6.On the question of jurisdiction, the Respondents submitted that although the jurisdiction of the Employment and Labour Relations Court is conferred by Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, such jurisdiction must be exercised alongside Section 29(3) of the Employment and Labour Relations Court Act, which empowers the Chief Justice to designate magistrates to hear employment and labour disputes within specified pecuniary limits. 7.They submitted that pursuant to Gazette Notice No. 6024 of 22nd June 2018, magistrates of the rank of Senior Resident Magistrate were appointed to hear employment and labour disputes where the employee’s gross monthly salary does not exceed Kshs. 80,000. 8.The Respondents argued that the effect of the Gazette Notice was considered in Ngatia v National Syndemic Diseases Control Council [2025] KEELRC 2286 (KLR), where the Court, faced with a similar objection, held that: "in effect and by this notice, all employment disputes arising from contracts of service in which an employee's monthly salary is below Ksh. 80,000.00 are to be handled by the Magistrate's Court," The Court further observed that the directions were intended to decongest the ELRC and enhance access to justice, and that a claimant who approaches the ELRC in full knowledge that his salary falls below the Gazette threshold makes an unwarranted choice of forum amounting, in a sense, to an abuse of the court process, notwithstanding the Court's original jurisdiction to entertain the dispute. 9.The Respondents further submitted that the Court in the same decision underscored the purpose of the Gazette Notice as being to decongest the Employment and Labour Relations Court and enhance access to justice by devolving appropriate matters to the Magistrates’ Courts. The Respondents relied on the Court’s further observation that: “The aforesaid directions were not issued in vain. They are intended to decongest the ELRC by defraying some work to the Magistrate’s Court in order to enhance access to justice. In my view, the ELRC and the parties who come before it must give meaning to the directions by ensuring that matters in which an employee’s salary does not exceed Ksh. 80,000.00 are presented to the Magistrate’s Court for adjudication. Otherwise, the court will be setting ground for confusion and possible forum shopping… whilst this court is entitled to entertain the instant dispute on account of its original jurisdiction, the Claimant’s decision to approach it whilst he was aware that his salary fell below the threshold set by the above Gazette Notice amounted to an unwarranted choice of the forum to hear his case. As such and in a sense, it amounts to abuse of the court process.” 10.The Respondents submitted that the Claimant having pleaded a monthly gross salary of Kshs. 40,000, his claim falls squarely within the jurisdiction of the Magistrates' Courts. Reliance was placed on Onyango v Ken Knit Kenya Limited [2024] KEELRC 1569 (KLR) wherein the Court held held that, going by the Gazette Notice, that claim ought to have been lodged in the lower court. 11.It is the Respondent’s submission that this Court lacked jurisdiction to entertain the claim in the first instance and that the suit ought to have been filed before the Magistrates’ Court, the Claimant’s remuneration being well below the prescribed pecuniary threshold. 2nd Respondent’s Submissions 12.The 2nd Respondent submitted that the Preliminary Objection dated 26th January 2026 raises a pure point of law properly determinable without recourse to evidence. Jurisdiction, being the very foundation of a court's authority to act, is the quintessential point of law contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 13.It was submitted that, contrary to the Claimant's characterization of the objection as a mere procedural technicality, jurisdiction constitutes the lifeblood of the Court's power and cannot be relegated to a matter of form. 14.On the challenge to pecuniary jurisdiction, the 2nd Respondent submitted that while Article 162(2)(a) of the Constitution confers upon this Court general jurisdiction over employment and labour relations matters, jurisdiction is exercised subject to the Employment and Labour Relations Court Act and subsidiary administrative instruments made thereunder. Section 29(3) of the Act empowers the Chief Justice, by notice in the Kenya Gazette, to appoint Magistrates to preside over employment and labour relations matters within specified areas. 15.It was submitted that the Chief Justice exercised that power vide Gazette Notice No. 6024 of 2018, designating Magistrates' Courts to hear employment and labour relations disputes where the employee's gross monthly pay does not exceed Kshs. 80,000. Therefore, by filing a claim founded on a monthly salary of Kshs. 40,000 in this Court, the Claimant bypassed the mandatory lower forum prescribed by that Gazette Notice. 16.The 2nd Respondent further submitted that the Claimant's cumulative claim of KES 2,720,000 remained, in any event, within the pecuniary jurisdiction conferred upon the Magistrates' Courts under Section 7(1) of the Magistrates' Courts Act. 17.The 2nd Respondent submitted that the Claimant's invocation of the "Oxygen Principle" to cure what was described as a pecuniary mismatch was misplaced. It placed reliance on Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) for the proposition that jurisdiction is everything, and that a court must down tools the moment it establishes that it lacks the authority to proceed. 18.Responding to the Claimant's grounds of opposition, the 2nd Respondent submitted that the Claimant's reliance on Article 159(2)(d) of the Constitution, to the effect that striking out the claim would elevate procedural technicality over substantive justice, was unsustainable, as jurisdiction is a substantive requirement of law and not a mere technicality capable of being cured under that Article. 19.It is the 2nd Respondent’s submission that the claim, having been filed in the wrong forum, ought to be struck out, and it cited placed on Njuguna & 2 others v Vintz Plastics Ltd [2025] KEELRC 1001 (KLR) in support of that submission. 20.The 2nd Respondent submitted that the Claimant's stated monthly salary of Kshs. 40,000 placed the dispute squarely within the pecuniary jurisdiction of the Magistrate's Court. 21.I have examined all the averments and submissions of the parties herein. The preliminary objection is raised by the respondent on the ground that this court lacks jurisdiction to handle this claim in view of the salary of the claimant and in relation to the gazette notice cited herein. 22.Indeed vide the said gazette notice employees whose salary is kshs 80,000/- and below should file their cases before the magistrate’s courts. The claimant chose to file this claim before this court without due consideration of the gazette notice. I therefore find the preliminary objection merited. I proceed to strike out this claim before this court. There shall be no order of costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF JULY 2026.HELLEN WASILWAJUDGE