(Being an appeal against the ruling and order of Hon. Ms Wendy Micheni, Chief Magistrate delivered on 29th September 2023 in Nairobi Milimani Magistrates Court Civil Suit No. 8827 of 2005)
1. Deogratius K. Okumu the appellant herein filed the present appeal through a memorandum dated 4th October 2023 based on the following grounds:
a. The magistrate erred in fact and law in finding that there was inordinate delay in filing appeal despite the fact that the Application for leave was filed within a reasonable time of delivery of the Ruling sought to be appealed.
b. The magistrate erred in fact and law by finding that there must be an end to litigation despite the fact that the case has never been heard and had been dismissed at interlocutory stage.
c. The magistrate erred in fact and law by finding that the Appellant had failed to pay the costs ordered by the court despite the fact that the Appellant had demonstrated despite reasonable doubt that the Advocate then on record had failed to notify the Appellant of the requirement to pay costs.
d. The magistrate erred in law and fact by exercising her discretion unreasonably by failing to find that the right and cause of action which the Appellant was pursuing is employment related benefits, salary arrears, service pay and gratuity which have quasi property rights which are protected constitutionally and statutorily.
e. The magistrate erred in law and fact by disregarding authorities and principles applicable in Application for leave to file appeal out of time.
f. The magistrate erred in law and fact by failing to find and hold that the Respondent being a public body would suffer no prejudice whatsoever if the Application was allowed as the Respondents exists to serve the public and the employees thereof being public servants safeguarding and protecting their rights serves the greater public good as opposed to dismissing case without according full hearing.
2. The appellant therefore prays that the:- (a) Appeal be allowed with costs. (b) The Ruling and Orders by Honourable Ms. Wendy Micheni (Chief Magistrate) made on 29th September 2023 be set aside and the Court do make such orders as it may deem appropriate. (c) Costs of this Appeal be awarded to the Appellant.
3. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
4. I have considered the grounds as set out in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
5. Ground No. 4 in the memorandum of appeal provides a glimpse of what the cause of action in the magistrate’s court was. It is that:
“The magistrate erred in law and fact by exercising her discretion unreasonably by failing to find that the right and cause of action which the Appellant was pursuing is employment related benefits, salary arrears, service pay and gratuity which have quasi property rights which are protected constitutionally and statutorily.” (emphasis by underlining mine).
6. I have perused the pleadings in the lower court as contained in the lower court file which has been made available to this court.
7. It is apparent from the plaint amended on 20th April 2006 that the cause of action in the lower court was on employer/employee relationship. Paragraph 4 avers that the appellant was employed by the respondent and earning a stated monthly salary. The subsequent paragraphs aver that the appellant was suspended from employment by the respondent for reasons that he had been charged in court for theft and subsequently dismissed on 23rd April 2003. He was however subsequently acquitted of the criminal charges and for that reason he averred that he was entitled to be paid all his salary and dues that were withheld by the respondent during his suspension. He outlined in the amended plaint the dues and averred in paragraph 11 that his claim against the respondent was for the recovery of the sum of KShs 984,695.45 being unpaid salary as pleaded.
8. The question then is whether or not this court has jurisdiction over that claim by the appellant against the respondent.
9. Under Articles 162(2) and 165(5) of the Constitution, this court has no jurisdiction over that question.
10. The primary source of the jurisdiction of the courts is the Constitution. With respect to matters touching on employment and labour relations, the relevant provisions are in Article 162(2) and 165(5).
11. Article 162(2)(a) of the constitution provides for the establishment of courts to be of equal status with the High Court, to hear and determine disputes relating to employment and labour relations. Pursuant to Article 162(2) of the Constitution the Employment and Labour Relations Court Act (Chapter 234B) Laws of Kenya establishes the Employment and Labour Relations Court. The jurisdiction of the court is set out in section 12 of the Act. Under section 12(1)(a) the court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including disputes relating to or arising out of employment between an employer and an employee.
12. It is quite apparent that the claim by the appellant against the respondent herein is between an employee and his employer, the circumstances surrounding termination of the employee from employment and a claim by the employee for his benefits.
13. Article 165(5)(b) of the Constitution on the jurisdiction of the High Court provides that the jurisdiction does not cover the matters falling within the jurisdiction of the courts under Article 162(2).
14. It was held by the Court of Appeal, in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) that:
“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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
15. The question of the jurisdiction of the High Court and the Courts of Equal Status envisaged under article 162(2) was clarified by the Supreme Court of Kenya in Republic v. Karisa Chengo & 2 Others Supreme Court Petition No. 5 of 2015; [2017] eKLR, as follows:
“In addition to the above, we note that under Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal's decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters presented to the ELC and ELRC (emphasis mine), it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court."
16. The Supreme Court of Kenya once again restated the position 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 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), thus:
“…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.”
17. I am bound to follow these decisions and find that this court has no jurisdiction to consider the appeal herein.
18. Consequently, this court finds that the applicant’s appeal can better be addressed before the correct forum but not this court.
19. The appeal is struck out with no orders as to costs since this issue was raised suo moto by the court.
20. Orders accordingly.
21. Delivered, dated and signed on the Virtual Platform, Teams this 16th day of January 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Odawa for Applicant.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
1. Deogratius K. Okumu the appellant herein filed the present appeal through a memorandum dated 4th October 2023 based on the following grounds:
a. The magistrate erred in fact and law in finding that there was inordinate delay in filing appeal despite the fact that the Application for leave was filed within a reasonable time of delivery of the Ruling sought to be appealed.
b. The magistrate erred in fact and law by finding that there must be an end to litigation despite the fact that the case has never been heard and had been dismissed at interlocutory stage.
c. The magistrate erred in fact and law by finding that the Appellant had failed to pay the costs ordered by the court despite the fact that the Appellant had demonstrated despite reasonable doubt that the Advocate then on record had failed to notify the Appellant of the requirement to pay costs.
d. The magistrate erred in law and fact by exercising her discretion unreasonably by failing to find that the right and cause of action which the Appellant was pursuing is employment related benefits, salary arrears, service pay and gratuity which have quasi property rights which are protected constitutionally and statutorily.
e. The magistrate erred in law and fact by disregarding authorities and principles applicable in Application for leave to file appeal out of time.
f. The magistrate erred in law and fact by failing to find and hold that the Respondent being a public body would suffer no prejudice whatsoever if the Application was allowed as the Respondents exists to serve the public and the employees thereof being public servants safeguarding and protecting their rights serves the greater public good as opposed to dismissing case without according full hearing.
2. The appellant therefore prays that the:- (a) Appeal be allowed with costs. (b) The Ruling and Orders by Honourable Ms. Wendy Micheni (Chief Magistrate) made on 29th September 2023 be set aside and the Court do make such orders as it may deem appropriate. (c) Costs of this Appeal be awarded to the Appellant.
3. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
4. I have considered the grounds as set out in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
5. Ground No. 4 in the memorandum of appeal provides a glimpse of what the cause of action in the magistrate’s court was. It is that:
“The magistrate erred in law and fact by exercising her discretion unreasonably by failing to find that the right and cause of action which the Appellant was pursuing is employment related benefits, salary arrears, service pay and gratuity which have quasi property rights which are protected constitutionally and statutorily.” (emphasis by underlining mine).
6. I have perused the pleadings in the lower court as contained in the lower court file which has been made available to this court.
7. It is apparent from the plaint amended on 20th April 2006 that the cause of action in the lower court was on employer/employee relationship. Paragraph 4 avers that the appellant was employed by the respondent and earning a stated monthly salary. The subsequent paragraphs aver that the appellant was suspended from employment by the respondent for reasons that he had been charged in court for theft and subsequently dismissed on 23rd April 2003. He was however subsequently acquitted of the criminal charges and for that reason he averred that he was entitled to be paid all his salary and dues that were withheld by the respondent during his suspension. He outlined in the amended plaint the dues and averred in paragraph 11 that his claim against the respondent was for the recovery of the sum of KShs 984,695.45 being unpaid salary as pleaded.
8. The question then is whether or not this court has jurisdiction over that claim by the appellant against the respondent.
9. Under Articles 162(2) and 165(5) of the Constitution, this court has no jurisdiction over that question.
10. The primary source of the jurisdiction of the courts is the Constitution. With respect to matters touching on employment and labour relations, the relevant provisions are in Article 162(2) and 165(5).
11. Article 162(2)(a) of the constitution provides for the establishment of courts to be of equal status with the High Court, to hear and determine disputes relating to employment and labour relations. Pursuant to Article 162(2) of the Constitution the Employment and Labour Relations Court Act (Chapter 234B) Laws of Kenya establishes the Employment and Labour Relations Court. The jurisdiction of the court is set out in section 12 of the Act. Under section 12(1)(a) the court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including disputes relating to or arising out of employment between an employer and an employee.
12. It is quite apparent that the claim by the appellant against the respondent herein is between an employee and his employer, the circumstances surrounding termination of the employee from employment and a claim by the employee for his benefits.
13. Article 165(5)(b) of the Constitution on the jurisdiction of the High Court provides that the jurisdiction does not cover the matters falling within the jurisdiction of the courts under Article 162(2).
14. It was held by the Court of Appeal, in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) that:
“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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
15. The question of the jurisdiction of the High Court and the Courts of Equal Status envisaged under article 162(2) was clarified by the Supreme Court of Kenya in Republic v. Karisa Chengo & 2 Others Supreme Court Petition No. 5 of 2015; [2017] eKLR, as follows:
“In addition to the above, we note that under Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal's decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters presented to the ELC and ELRC (emphasis mine), it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court."
16. The Supreme Court of Kenya once again restated the position 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 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), thus:
“…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.”
17. I am bound to follow these decisions and find that this court has no jurisdiction to consider the appeal herein.
18. Consequently, this court finds that the applicant’s appeal can better be addressed before the correct forum but not this court.
19. The appeal is struck out with no orders as to costs since this issue was raised suo moto by the court.
20. Orders accordingly.
21. Delivered, dated and signed on the Virtual Platform, Teams this 16th day of January 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Odawa for Applicant.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE