1. Albert Mwaniki Mutua (the Claimant) sued Raicha’s Electro Services Ltd (the Respondent) on 10 July 2024, alleging unfair termination of employment.
2. Upon service, the Respondent raised a Notice of Preliminary Objection on 24 March 2025, contending that:
(i) The Claim herein falls within the jurisdiction of the Magistrates Court pursuant to Gazette Notice No. 6024 of 22nd June 2018 wherein the Chief Justice appointed Magistrates of the rank of Senior Resident Magistrate and above to hear and determine employment and labour relations disputes where the employees gross monthly pay does not exceed Kes 80,000/- as commenced and continued in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016.
(ii) The Claimant was a casual employee of the Respondent, earning a wage of Kes 840/- per day.
(iii) It is in the interest of justice that this matter be heard by the proper forum.
(iv) The Respondent prays that this Claim be dismissed with costs.
3. Pursuant to directions given on 25 March 2025, the Claimant filed what he called a Reply to Notice of Preliminary Objection and submissions on 30 May 2025.
4. In the Reply and submissions, the Claimant asserted that he was seeking declaratory orders which were anchored on the Constitution and that the Cause raised triable issues.
5. To support the submission, the Claimant cited section 8(3) of the Magistrates Court Act, which ousts the jurisdiction of the Magistrates Court from handling claims asserting violation of fundamental rights.
6. The Claimant further contended that the Preliminary Objection was predicated on disputed facts which merited a hearing on the merits.
7. The Respondent’s submissions were not on record by the agreed timeline of 4 April 2025.
8. The Court has considered the Statement of Claim, Notice of Preliminary Objection and submissions on record.
9. The Claimant stated the Issues in Dispute in the Memorandum of Claim as:
(i) Unfair summary dismissal.
(ii) Violation of the right to fair labour practices.
(iii) Violation of fundamental rights and freedoms.
(iv) Unequal treatment and freedom from discrimination.
10. And the reliefs pleaded by the Claimant were:
(i) The Claimant’s primary claim against the Respondent is for an order for immediate reinstatement to his previous position or a comparable position as provided under section 45 of the Employment Act, 2007.
(ii) A declaration that the Claimant’s dismissal on May 22, 2024, was unlawful and constituted unfair summary dismissal under section 41 of the Employment Act, 2007.
(iii) The Claimant seeks compensation equivalent to twelve (12) months’ salary as provided under section 49 of the Employment Act, 2007, for unjust termination of employment without notice or pay in lieu.
(iv) The Claimant also seeks payment for 49.47 days of accrued but unutilised annual leave as stipulated under section 28 of the Employment Act, 2007.
(v) Compensation payment of Kshs 500,000/- for working on public holidays without overtime pay in accordance with section 28A of the Employment Act, 2007.
(vi) Severance pay at the rate of 1.5 months' salary for every year of service as provided under section 35 of the Employment Act, 2007.
(vii) Payment of outstanding contributions to the National Social Security Fund (NSSF) and National Hospital Insurance Fund (NHIF) for the periods indicated in the demand letter as required by the respective Acts.
(viii) Reimbursement of Kshs 45,000/- for medical expenses incurred due to work-related injury in August 2022 in breach of the employer’s duty under the Occupational Safety and Health Act No 15 of 2007.
(ix) General damages for pain, suffering and inconvenience caused by the Respondent’s actions as determined by the Court.
(x) Costs of the legal proceedings, including advocates' fees and court costs incurred by the Claimant in pursuing this matter.
(xi) Any further or other relief the Court deems fit.
11. Through Gazette Notice No 6024 of 22 June 2018, the Honourable Chief Justice delegated some of this Court’s jurisdiction to Magistrates of the rank of Senior Resident Magistrate and above, especially where the monthly earnings were below Kshs 80,000/-.
12. The Claimant falls in that category, and all the reliefs he has prayed for fall within the delegated province of the Senior Resident Magistrates Court. The argument pertaining to the violation of Constitutional rights does not lie since all the violations can be redressed under statutory law.
13. Since the Senior Resident Magistrates Court exercises delegated jurisdiction, the fair order to make is to transfer this Cause to the Chief Magistrates Court instead of dismissing it.
Orders
14. Flowing from the above, the Cause herein is transferred to the Chief Magistrates Court, Milimani Commercial Courts for hearing and determination.
15. Costs in the Respondent.
2. Upon service, the Respondent raised a Notice of Preliminary Objection on 24 March 2025, contending that:
(i) The Claim herein falls within the jurisdiction of the Magistrates Court pursuant to Gazette Notice No. 6024 of 22nd June 2018 wherein the Chief Justice appointed Magistrates of the rank of Senior Resident Magistrate and above to hear and determine employment and labour relations disputes where the employees gross monthly pay does not exceed Kes 80,000/- as commenced and continued in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016.
(ii) The Claimant was a casual employee of the Respondent, earning a wage of Kes 840/- per day.
(iii) It is in the interest of justice that this matter be heard by the proper forum.
(iv) The Respondent prays that this Claim be dismissed with costs.
3. Pursuant to directions given on 25 March 2025, the Claimant filed what he called a Reply to Notice of Preliminary Objection and submissions on 30 May 2025.
4. In the Reply and submissions, the Claimant asserted that he was seeking declaratory orders which were anchored on the Constitution and that the Cause raised triable issues.
5. To support the submission, the Claimant cited section 8(3) of the Magistrates Court Act, which ousts the jurisdiction of the Magistrates Court from handling claims asserting violation of fundamental rights.
6. The Claimant further contended that the Preliminary Objection was predicated on disputed facts which merited a hearing on the merits.
7. The Respondent’s submissions were not on record by the agreed timeline of 4 April 2025.
8. The Court has considered the Statement of Claim, Notice of Preliminary Objection and submissions on record.
9. The Claimant stated the Issues in Dispute in the Memorandum of Claim as:
(i) Unfair summary dismissal.
(ii) Violation of the right to fair labour practices.
(iii) Violation of fundamental rights and freedoms.
(iv) Unequal treatment and freedom from discrimination.
10. And the reliefs pleaded by the Claimant were:
(i) The Claimant’s primary claim against the Respondent is for an order for immediate reinstatement to his previous position or a comparable position as provided under section 45 of the Employment Act, 2007.
(ii) A declaration that the Claimant’s dismissal on May 22, 2024, was unlawful and constituted unfair summary dismissal under section 41 of the Employment Act, 2007.
(iii) The Claimant seeks compensation equivalent to twelve (12) months’ salary as provided under section 49 of the Employment Act, 2007, for unjust termination of employment without notice or pay in lieu.
(iv) The Claimant also seeks payment for 49.47 days of accrued but unutilised annual leave as stipulated under section 28 of the Employment Act, 2007.
(v) Compensation payment of Kshs 500,000/- for working on public holidays without overtime pay in accordance with section 28A of the Employment Act, 2007.
(vi) Severance pay at the rate of 1.5 months' salary for every year of service as provided under section 35 of the Employment Act, 2007.
(vii) Payment of outstanding contributions to the National Social Security Fund (NSSF) and National Hospital Insurance Fund (NHIF) for the periods indicated in the demand letter as required by the respective Acts.
(viii) Reimbursement of Kshs 45,000/- for medical expenses incurred due to work-related injury in August 2022 in breach of the employer’s duty under the Occupational Safety and Health Act No 15 of 2007.
(ix) General damages for pain, suffering and inconvenience caused by the Respondent’s actions as determined by the Court.
(x) Costs of the legal proceedings, including advocates' fees and court costs incurred by the Claimant in pursuing this matter.
(xi) Any further or other relief the Court deems fit.
11. Through Gazette Notice No 6024 of 22 June 2018, the Honourable Chief Justice delegated some of this Court’s jurisdiction to Magistrates of the rank of Senior Resident Magistrate and above, especially where the monthly earnings were below Kshs 80,000/-.
12. The Claimant falls in that category, and all the reliefs he has prayed for fall within the delegated province of the Senior Resident Magistrates Court. The argument pertaining to the violation of Constitutional rights does not lie since all the violations can be redressed under statutory law.
13. Since the Senior Resident Magistrates Court exercises delegated jurisdiction, the fair order to make is to transfer this Cause to the Chief Magistrates Court instead of dismissing it.
Orders
14. Flowing from the above, the Cause herein is transferred to the Chief Magistrates Court, Milimani Commercial Courts for hearing and determination.
15. Costs in the Respondent.