https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1892

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA** **MISCELLANEOUS NO. E001 OF 2026** **VILMA M. MOTUKA………………………………..…APPLICANT** **VERSUS** **STANBIC KENYA LIMITED……….........................RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **Ruling** 1. **INTRODUCTION** 2. In a Notice of Motion dated 8th January 2026 (the application), the Applicant is seeking for orders that – 3. ***Spent.*** 4. ***THAT pending the hearing and determination of this Application, the Honourable Court be pleased to issue an order for stay of all proceedings in MCELRC E009 of 2025 before the Busia Chief Magistrate's Court.*** 5. ***THAT this Honourable Court be pleased to order the withdrawal and transfer of MCELRC E009 of 2025 from the Busia Chief Magistrate's Court to the Employment and Labour Relations Court at Busia for hearing and determination.*** 6. ***THAT the Honourable Court be pleased to order that all further proceedings in MCELRC E009 of 2025 do proceed before this Honourable Court.*** 7. ***THAT the Honourable Court be pleased to issue such further orders as it may deem just and expedient in the circumstances.*** 8. ***THAT costs of this Application be in the cause.*** 9. The application is expressed to be founded on ***Articles 159, 162(2)(a) and 165(6) & (7) of the Constitution, Sections 1A, 1B, 3A, 4, 7, & 18 of the Civil Procedure Act, Section 12 & 29 of the Employment and Labour Relations Court Act***. It is based on the grounds on the face of it. 10. The application is supported with the affidavit sworn by the Applicant on 8th January 2026, with several annexures thereto. 11. In response to the application, the Respondent filed a replying affidavit sworn by Ferdinand Makani, a legal advisor of the Respondent, on 30th March 2026, with several annexures thereto. 12. The Respondent further filed a Preliminary Objection (PO) based on the grounds that – 13. *This Honourable Court lacks jurisdiction to transfer an incompetent suit from the lower Court to this Honourable Court.* 14. *There is no competent suit in existence that is capable of being transferred to this Honourable Court, as the suit filed in the subordinate Court, to wit; MCELRC E009 of 2025 is a nullity ab initio.* 15. *The present proceedings constitute an abuse of the due process of the Court and ought to be struck out and dismissed with costs to the Respondent.* 16. On 6th February 2026 when the matter came up in court for directions, the court directed that the application be canvassed by way of written submissions. Mr. Akiro for the Applicant filed written submissions dated 14th April 2026 while Mr. Gichana for the Respondent filed written submissions dated 10th April 2026. 17. **THE EVIDENCE** 18. In the supporting affidavit, it is deponed that the suit before the Magistrate's Court arises from a contract of employment dated **22nd January 2024** entered into with the Respondent, under which the applicant was employed as a **Universal Banker** with effect from 1**st February 2024** at a gross monthly salary of **Kshs149,333/=**. 19. It is deposed that under ***Gazette Notice No. 6024 of 22 June 2018***, Magistrates' Courts are designated to only hear employment disputes arising from contracts of employment where the employee's gross monthly salary does not exceed **Kshs80,000/=**. Since the Appellant’s salary exceeded that threshold, she argues that the Busia Chief Magistrate's Court lacks jurisdiction to hear and determine the suit. 20. The Applicant reiterates that continuation of proceedings before the subordinate court may result in a nullity and occasion her substantial prejudice. She avers that this Court has constitutional and statutory jurisdiction to order the transfer of the matter and that, in the interests of justice and in accordance with ***Article 159 of the Constitution***, the suit should be withdrawn from the Magistrate's Court and heard by the Employment and Labour Relations Court (ELRC). 21. In the replying affidavit, the deponent deposes that the application is misconceived, incompetent and an abuse of the court process because there is no provision in the ***Employment and Labour Relations Court Act, the Civil Procedure Act, the Employment Act*** or any other law empowering the ELRC to transfer a suit from a subordinate court to itself. 22. It is deposed that upon being instructed to act in ***Busia MCELRC No. E009 of 2025***, the Respondent’s advocates discovered that the Applicant's employment contract disclosed a gross monthly salary of Kshs149,333/=, which exceeded the Kshs80,000/= pecuniary limit prescribed under *Gazette Notice No. 6024 of 22 June 2018* for employment disputes before Magistrates' Courts. Consequently, the Respondent filed a Preliminary Objection challenging the jurisdiction in Busia Chief Magistrate's Court and seeking dismissal of the suit. 23. It is further deposed that the suit had not been allocated a hearing date and the Respondent's advocates wrote to the Executive Officer requesting that the PO be fixed for hearing. Upon being served with the PO the and supporting submissions, the Applicant allegedly filed the present application in an attempt to circumvent the jurisdictional challenge and defeat the PO. 24. It is contended that the proper course of action where a suit has been filed before a court lacking jurisdiction is to withdraw the same and institute fresh proceedings in a court of competent jurisdiction. It is stated that the present application amounts to waste of judicial time and resources. 25. It is argued that reliance on ***Section 18 of the Civil Procedure Act*** and ***Article 165(6) and (7) of the Constitution*** by the Applicant is misplaced, as a suit instituted in a court without jurisdiction is a nullity and incapable of being transferred. It is deposed further that the power to transfer a cause under ***Section 18 of the Civil Procedure Act*** applies only where the original court possessed jurisdiction, and the ELRC cannot validate proceedings commenced in a court without jurisdiction. 26. It is stated that the supervisory jurisdiction of the Court is inapplicable because the subordinate court has not taken any step warranting supervision. 27. It is further deposed that the Applicant shall suffer no prejudice if the application is dismissed because she remains at liberty to withdraw the suit before the Magistrate's Court and file a fresh claim in the ELRC. It is thus stated that the application is merely a tactical manoeuvre to avoid the consequences of the Preliminary Objection and urges the Court to dismiss it with costs. 28. **SUBMISSIONS** 29. Counsel for the Applicant submitted on three issues – *Whether this Honourable Court has jurisdiction to withdraw and transfer the suit; Whether the Respondent’s Replying Affidavit is competent before the court; and, Whether the Applicant’s application meets the threshold for grant of the orders sought.* 30. It is submitted that the Court has jurisdiction to withdraw and transfer ***Busia MCELRC No. E009 of 2025*** to the ELRC. It is argued that the suit was filed in the Magistrate's Court in good faith before it was realized that the Applicant's salary of Kshs149,333 exceeded the jurisdictional limit under Gazette Notice No. 6024. Citing ***Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2020] eKLR****,* counsel submitted that transfer of a cause to the proper forum facilitates substantive justice. 31. Counsel further cited ***Francis Kibugi Wanjohi v Kenya Railways Corporation [2021] KEELRC 793*** which adopted the holding in ***Pamoja Women Development Programme & 3 others v Jackson Kihumbu Wangombe & another [2016] eKLR***, submitting that a litigant acting in good faith should not be compelled to file a fresh cause. 32. Counsel further submitted that the holdings in ***Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] eKLR*** and ***Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR*** are not a bar to the ELRC transferring a matter in the interests of justice. It is submitted ***Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR*** affirms that the Court's jurisdiction is derived from the Constitution and statute. 33. Counsel further submitted that the replying affidavit is incompetent because it was sworn without a Resolution of the Board of the Respondent or written authority to the deponent to act on behalf of the Respondent. To buttress this assertion, Counsel cited ***Jurist Enterprises Limited v Tabete Company Limited & another [2025] KEHC 12682 (KLR)****.* 34. Finally, counsel argued that no prejudice shall be suffered by the Respondent if the transfer is allowed, whereas refusal would unjustly deny the Applicant a hearing on the merits of the cause. The Court is urged to dismiss the PO, strike out the replying affidavit, allow the application, and order that costs be in the cause. 35. On the other hand, Counsel for the Respondent submitted on a single issue – *Whether this Honourable Court is vested with jurisdiction to transfer a suit from a subordinate court to itself.* 36. Citing Owners ***of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR*** and ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR,*** it is argued that jurisdiction is conferred only by the Constitution or statute and cannot be expanded through judicial innovation. 37. Counsel submitted that neither the **Employment and Labour Relations Court Act** nor the ***Employment and Labour Relations Court (Procedure) Rules*** confer such jurisdiction upon the court, and that ***Section 18 of the Civil Procedure Act*** is inapplicable. To buttress this assertion, counsel cited ***Prisca Jepngetich v Generation Careers Readiness Social Initiative Ltd [2021] eKLR***. 38. It is further argued that a cause filed in a court without jurisdiction is a nullity incapable of being transferred. Counsel cited ***John Adoyo & 6 Others v De La Rue Currency [2022] eKLR,* *Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR,*** and ***Phoenix of E.A. Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR*** in support of that argument*.* 39. Counsel urged the Court to find that the Applicant should withdraw the incompetent suit and file a fresh claim in the appropriate court, as no prejudice shall be occasioned. The court is urged to dismiss the application with costs. 40. **ANALYSIS & DETERMINATION** 41. The court has carefully read and considered the application, the affidavit in support, the replying affidavit, and the submissions by counsel for both parties. The sole issue for determination is – ***Whether Busia MCELRC E009 of 2025 is capable of being transferred to this court.*** 42. **TRANSFER OF SUIT** 43. The gist of the application is that ***Busia MCELRC E009 of 2025*** was filed in a court devoid of pecuniary jurisdiction, a position agreed upon by both parties. 44. The Court of Appeal in ***Phoenix of E.A. Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR*** affirmed the decision in ***Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR***, where the court succinctly stated that – ***When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively.*** ***Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.*** 1. The Court of Appeal went on to hold that – ***20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void.*** 2. This court returns that if the cause filed by the Applicant in the Magistrates’ Court is without jurisdiction, the same is a nullity and incapable of being transferred to this court. There is nothing capable of being transferred. The only recourse available to the Applicant is to withdraw the cause and file a compliant one in the court seized of jurisdiction. 3. It follows thus that the Notice of motion dated 8th January 2026 is devoid of merit and is hereby dismissed. 4. **ORDER** 5. The court orders that – 6. ***The application dated 8th January 2026 is devoid of merit and the same is hereby dismissed.*** 7. ***Costs of this application to the Respondent.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 2ND DAY OF JULY 2026.** **....................................** **DAVID NDERITU** **JUDGE**