Alex Momanyi Mogire the appellant herein sued the respondent in the lower court seeking compensation for injuries sustained on 18-06-2012 in the course of his duties as an employee of the respondent. After a full trial, the Honourable Magistrate dismissed the case and being aggrieved by that decision, the appellant filed this appeal.
In a notice of preliminary objection dated 16 th June 2025, the respondent pleaded that this court lacks jurisdiction to hear and determine this matter as the cause of action at the trial court was a work injury claim and under the provisions of the Constitution and the Employment and Labour Relations Court Act, the jurisdiction over the matter is vested in the Employment and Relations Court.
In what is clearly a reaction to the notice of preliminary objection, the appellant filed an application dated 22 nd August 2025 seeking that this court orders transfer of this matter to the Employment and Labour Relations Court at Nairobi. In the application, the appellant has conceded as he has done in his submissions dated 22 nd August 2025 that the jurisdiction over this appeal is vested in the Employment and Labour Relations Court.
Section 12(a) as read together with Section 12(1)(v) of the Employment and Labour Relations Court clearly exclusively places this matter under jurisdiction of the Employment and Labour Relations Court. By using the word ‘exclusively’, the Legislature was clear that there wouldn’t be any other judicial forums where disputes between employer and employee may be handled. The said Court being a court of equal status by virtue of Article 162(2)(a) of the Constitution, this court’s jurisdiction is ousted by the Constitution and Statute.
I have looked at the submissions of the appellants as well as those of the respondents dated 27 th August 2025. The common ground in the submissions of both parties is that this court lacks jurisdiction. The dispute is whether this court has powers and can indeed order transfer of the matter as prayed by the appellant.
The appellant insists that this court has jurisdiction as transfer is a procedural matter and in support of that position, he has quoted the holding of Justice H.P.G Waweru in John Mwangi Karanja v Alfred Ndiangui [2011] KEHC 4323 (KLR) where he stated that;
‘It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated.’
The respondent has distinguished the aforesaid authority from this appeal in that the same referred to territorial jurisdiction and not a substantial statutory jurisdiction across courts of different jurisdictions. The respondent has referred this court to the holding of the Court of Appeal in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) where it held as follows;
‘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.’
Having considered the matter and the authorities cited to me, I hold the opinion that this court lacks jurisdiction to transfer this matter to Employment and Labour Relations Court under powers granted under Section 18 of the Civil Procedure Rules. I do agree with the respondent that the circumstances of the John Mwangi Karanja case ( supra) cited by the appellant are different from this matter and even if they weren’t, the authority can only be persuasive to this court and not binding. To the contrary, the authority cited by the respondent is binding on me the same having been a judgment of a higher court.
I have also been guided by the Supreme Court’s holding in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of the Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] KESC 83 (KLR) where it was held that;
‘ In that context, the purposive reading and interpretation of article 162 together with article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under article 162(2) supra, must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.
Based on what I have stated above, this matter having been filed in the wrong court, it remains incompetent and incapable of being transferred to another court. Doing so would be transferring a nullity. The only available remedy for the same is striking it out and open the door for the appellant to change his strategy. Consequently, this appeal is struck out with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Kibet holding brief for Miss Mideva for the appellant and Miss Mati holding brief for Mr. Namasake for the respondent.
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In a notice of preliminary objection dated 16 th June 2025, the respondent pleaded that this court lacks jurisdiction to hear and determine this matter as the cause of action at the trial court was a work injury claim and under the provisions of the Constitution and the Employment and Labour Relations Court Act, the jurisdiction over the matter is vested in the Employment and Relations Court.
In what is clearly a reaction to the notice of preliminary objection, the appellant filed an application dated 22 nd August 2025 seeking that this court orders transfer of this matter to the Employment and Labour Relations Court at Nairobi. In the application, the appellant has conceded as he has done in his submissions dated 22 nd August 2025 that the jurisdiction over this appeal is vested in the Employment and Labour Relations Court.
Section 12(a) as read together with Section 12(1)(v) of the Employment and Labour Relations Court clearly exclusively places this matter under jurisdiction of the Employment and Labour Relations Court. By using the word ‘exclusively’, the Legislature was clear that there wouldn’t be any other judicial forums where disputes between employer and employee may be handled. The said Court being a court of equal status by virtue of Article 162(2)(a) of the Constitution, this court’s jurisdiction is ousted by the Constitution and Statute.
I have looked at the submissions of the appellants as well as those of the respondents dated 27 th August 2025. The common ground in the submissions of both parties is that this court lacks jurisdiction. The dispute is whether this court has powers and can indeed order transfer of the matter as prayed by the appellant.
The appellant insists that this court has jurisdiction as transfer is a procedural matter and in support of that position, he has quoted the holding of Justice H.P.G Waweru in John Mwangi Karanja v Alfred Ndiangui [2011] KEHC 4323 (KLR) where he stated that;
‘It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated.’
The respondent has distinguished the aforesaid authority from this appeal in that the same referred to territorial jurisdiction and not a substantial statutory jurisdiction across courts of different jurisdictions. The respondent has referred this court to the holding of the Court of Appeal in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) where it held as follows;
‘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.’
Having considered the matter and the authorities cited to me, I hold the opinion that this court lacks jurisdiction to transfer this matter to Employment and Labour Relations Court under powers granted under Section 18 of the Civil Procedure Rules. I do agree with the respondent that the circumstances of the John Mwangi Karanja case ( supra) cited by the appellant are different from this matter and even if they weren’t, the authority can only be persuasive to this court and not binding. To the contrary, the authority cited by the respondent is binding on me the same having been a judgment of a higher court.
I have also been guided by the Supreme Court’s holding in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of the Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] KESC 83 (KLR) where it was held that;
‘ In that context, the purposive reading and interpretation of article 162 together with article 165(5) of the Constitution leaves no doubt that the original and appellate jurisdiction over disputes related to Employment and Labour relations was transferred from the High Court to the Employment and Labour Relations Court. Prima facie, that meant that, any dispute subject to any other statutory or constitutional limitations emanating from the disputes contemplated under article 162(2) supra, must be determined by the Employment and Labour Relations Court. This is what may have informed the consent by parties through respective counsel to transfer the matter from the High Court to the Employment and Labour Relations Court.
However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.
Based on what I have stated above, this matter having been filed in the wrong court, it remains incompetent and incapable of being transferred to another court. Doing so would be transferring a nullity. The only available remedy for the same is striking it out and open the door for the appellant to change his strategy. Consequently, this appeal is struck out with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Kibet holding brief for Miss Mideva for the appellant and Miss Mati holding brief for Mr. Namasake for the respondent.
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