1.The subject of this appeal is the ruling delivered by Hon Gathogo Sogomo, PM on 3rd November 2021 in MCELRC No E746 of 2021.
2.In its Memorandum of Appeal dated 11th January 2022, the Appellant raises the following grounds:a.The learned Magistrate erred in both law and fact by failing to appreciate that his court lacks the jurisdiction to entertain the matter;b.The learned Magistrate erred in both law and fact by failing to interrogate his court’s pecuniary limit as set out by law in rendering his impugned ruling on 3rd November 2021;c.The learned Magistrate erred in both law and fact by failing to acquaint himself with the provisions of the Gazette Notice No. 6024 of 22nd June 2018;d.The learned Magistrate erred in law and fact by failing to consider the Appellant’s submissions in rendering his ruling;e.The learned Magistrate erred in law by failing to substantively examine the merits of the Notice of Preliminary Objection as raised by the Appellant which points out from the onset that his court lacks the power to entertain the matter;f.The learned Magistrate erred in both law and fact by failing to discern the basis of the Preliminary Objection and as a result he was blinded to the fact that he was not cloaked with jurisdiction and went on to deal with non-issues;g.The learned Magistrate erred in law and fact in rendering the ruling having blatantly disregarded the Appellant’s Preliminary Objection;h.The learned Magistrate’s decision was contrary to the constitutional thresholds of justice, national values and principles of governance in that it skirts from inquiring into the grave matter in issue by examining the substratum of the Preliminary Objection as presented by the Appellant which would have given the law and justice a chance to prevail.
3.On 10th March 2022, the Court directed the parties to file their written submissions and gave 17th May 2022 as the date for highlighting of the submissions. However, by the time of writing this judgment, only the Appellant had filed submissions.
4.In its submissions dated 25th April 2022, the Appellant cites the decision of the Court of Appeal in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (1989) KLR 1 where Nyarangi JA stated thus:
5.The Appellant further relies on Gazette Notice No 6024 of 22nd June 2018, which donated power to Magistrates of the rank of Senior Resident Magistrate and above, to hear and determine disputes arising from contracts of employment where the employee’s gross monthly salary does not exceed Kshs. 80,000.
6.The Appellant submits that the Respondent’s gross monthly salary as disclosed in the Respondent’s own pleadings and his employment contract, was Kshs. 140,000 plus an additional Kshs. 10,000 as fuel allowance.
7.The jurisdiction to hear and determine disputes arising from employment contracts is specialised jurisdiction initially vested in the Employment and Labour Relations Court. Pursuant to Gazette Notice No 6024 of 22nd June 2018, this jurisdiction was shared with Magistrates of the rank of Senior Resident Magistrate and above, designated as special magistrates.
8.The subject Gazette Notice provides as follows:
9.There is no denial that at the time of leaving employment, the Respondent’s gross monthly pay was in excess of Kshs. 80,000. That being the case, the trial Magistrate did not have jurisdiction to entertain the Respondent’s claim. The Appellant’s Preliminary Objection was therefore well taken and ought to have been sustained.
10.In the result, I allow this appeal, set aside the order of 3rd November 2021 overruling the Appellant’s Preliminary Objection and replace it with an order upholding the said Objection.
11.Each party will bear their own costs.