Mulavu v Sandpiper Aviation Limited (Miscellaneous Application E288 of 2024) [2024] KEELRC 13465 (KLR) (19 December 2024) (Ruling)
Neutral citation:
[2024] KEELRC 13465 (KLR)
Republic of Kenya
Miscellaneous Application E288 of 2024
CN Baari, J
December 19, 2024
Between
Kevin Mathau Mulavu
Applicant
and
Sandpiper Aviation Limited
Respondent
Ruling
1.The Applicant filed a motion application dated 30th September, 2024, seeking to transfer the suit between the parties herein from the Magistrates’ Court to this court for hearing and determination, on the basis that the magistrates court lacks pecuniary jurisdiction to hear and determine the suit. The Respondent in rejoinder, filed a Notice of Preliminary Objection dated 28th October, 2024 seeking the striking out of the Applicant’s motion on the premise that it is bad in law.
2.The matter came up for directions on 29th October, 2024, when the Court directed parties to file submissions on both the motion and the Preliminary Objection which are the subject of this ruling.
3.The reliefs sought under the Applicant’s motion are that the Court issues an order to transfer Nairobi Chief Magistrates MCELRC No E086 of 2024 between Kevin Mathu Mulavu and SandPiper Limited for determination by a Judge of the Employment and Labour Relations Court, that upon the said transfer, the Court issues a date for pre-trial directions of the claim and finally that costs be in the cause.
4.Under the Preliminary Objection, the Respondent avers that the application dated 30th September 2024 is fatally defective and bad in law in so far as it seeks transfer and consequent trial and disposal of a non existent incompetent suit in Nairobi Chief Magistrate MCELRC No E086 of 2024, Kevin Mulavu v Sandpiper Aviation Limited from the lower Court to this Honourable Court.
5.That the lower Court having found that it lacked jurisdiction to preside over the matter and consequently dismissing the same, it ought to have downed its tools completely as per the principles established in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, and not purport to give any further directions.
6.That as a result, the matter in issue is a nullity ab initio and is not a live matter as it stands effectively dismissed, and this Honourable Court cannot therefore purport to try or dispose of the same under Section 18(1)(b)(i) of the Civil Procedure Act, and as such, the transfer and pre-trial directions orders sought by the Claimant/Applicant are ill-conceived, misguided and amount to an abuse of the Court process.
7.It is the Respondent’s argument that this Court exercises a specialized rather than a civil jurisdiction and does not therefore exercise transfer jurisdiction under the Civil Procedure Act 2010, as matters before this Court and at the Chief Magistrates' Court are both regulated.
8.Parties filed their submissions on both the motion and the Objection and which have been duly considered.
Analysis and Determination
9.I have considered both the application and the Objection, the Respondent’s Replying Affidavit and the parties’ written submissions. One issue fall for determination:-i.Whether this Court has jurisdiction to transfer a suit filed in a Magistrates Court without pecuniary jurisdiction to a Court with pecuniary jurisdiction for hearing and determination
10.On matters jurisdiction, the Court is guided by the decision of Nyarangi JA in Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited 1989] where he stated thus: -
11.The Applicant’s position is that the Hon. A. N. Ogonda delivered a ruling in Nairobi Chief Magistrates MCELRC No E086 of 2024 between Kevin Mathu Mulavu and SandPiper Limited on 30th February, 2024, finding that she has no pecuniary jurisdiction to hear and determine the Claimant’s now Applicant’s claim.
12.It is the Applicant’s assertion that the Honourable Magistrate did not strike out the suit upon finding that she did not have jurisdiction, but instead, directed the Claimant to move this court to have the matter transferred for determination by a Judge of the ELRC.
13.The Respondent on their part, assert that the lower Court having found that it lacked jurisdiction to preside over the matter and consequently dismissing the same, it ought to have downed its tools completely in accordance with the principles established in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, and not purport to give any further directions.
14.In considering an application to transfer such as that sought in the instant application, the court is under duty to confirm existence of a competent suit for purposes of the transfer. In the case of Meeli Ole Naisewa v Benson Gachuki Kinyanjui [2016] eKLR the court opined thus on transfer of suits: -
15.Under the Magistrates’ Act, the Magistrates pecuniary jurisdiction is limited to handling employment and labour-related cases where the salary of the employee does not exceed Kshs 80,000/=.
16.The Applicant’s net salary as at termination, and which figure is not disputed is Kshs 500,000. This amount is beyond the pecuniary jurisdiction of the court where the suit was filed.
17.In the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR the Court of Appeal observed thus: -
18.Similarly, in Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & another [2012] eKLR, it was held: -
19.This court further notes that in the ruling rendered by the lower court, the Honourable Magistrates indicated in no uncertain terms that “this court downs its tools for lack of pecuniary jurisdiction”. By this decision/finding, the suit before her was as dead as a dodo and the fact that the court proceeded to direct the parties to move this court for transfer, does not breathe life into the claim.
20.In whole, I find and hold that for reason that the Magistrates court did not have pecuniary jurisdiction to handle the matter whose transfer is being sought herein, there is no competent suit for this court to transfer.
21.Accordingly, the Application dated 30th September, 2024 is incompetent and is hereby dismissed, and the Preliminary Objection by the Respondent succeeds.
22.Parties shall bear their own costs of both the application and the objection.
23.It is so ordered.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF DECEMBER, 2024.C. N. BAARIJUDGEAppearance:Mr. Leibor Present for the ApplicantMr. Ogutu present for the RespondentMs. Esther-CA