1.Before this Court is the Notice of Motion dated 30th June, 2023 and filed on 3rd July, 2023. The Appellant/Applicant is seeking for the following orders:a.That this Hoonourable Court be pleased to order that this appeal be transferred to the Employment and Labour Relations Court at Meru for hearing and determination.b.That the costs of this Application be in the cause.
2.The Application is supported by the affidavit of Muthomi Njeru, an advocate of the High Court of Kenya and having conduct of this matter on behalf of the Appellant. It is deponed on behalf of the Appellant/Applicant THAT:a.The Appellant herein was an employee of the Respondent whereof he filed Chuka Civil Case No. 70 of 2004 which was heard and determined on 11th March, 2009.b.The Respondent herein filed an application dated 14th February, 2022 seeking inter alia that the interest be computed at 6% per annum.c.The application was determined on 9th November, 2022.d.The Appellant being dissatisfied with the said ruling preferred this appeal before this Honourable Court.e.By dint of Article 162(a) of the Constitution, this Court has no jurisdiction to entertain the appeal as the matters herein relate to Employment and Labour Relations Court.f.This appeal was by inadvertent mistake filed before this Court.g.The Appellant seeks to have the same transferred to the right Court, that is, the Employment and Labour Relations Court for hearing and determination.h.No prejudice shall be suffered by the Respondent if the order sought is granted.i.It is in the interest of justice that this Application be allowed.
3.The Application is opposed by the Respondent who filed a Replying Affidavit sworn on 11th July, 2023 by Hillary Sandi, also an advocate of the High Court of Kenya. The said advocate deponed, inter alia, THAT:a.The advocate for the Appellant is on record admitting that there was a mistake in filing this appeal, which mistake should not be visited upon the Respondent who already incurred cost due to the Appellant’s advocate’s mistake.b.From the onset, the Court lacks jurisdiction and thus by dint of that fact alone, this Application ought to fail.c.The appeal was filed by the Appellant’s own motion guided and advised by his advocate who is on record.d.The Respondent proceeded to appoint the firm of Hillary Sandi & Co. Advocates to come on record.e.The Respondent proceeded to pay the requisite advocate’s instructions fee as per the Advocates Remuneration Order.f.At the lower court, this matter alongside a series of others, were consolidated to have one lead file since they have similar facts and issues.g.The Respondent has already incurred cost in giving instruction to the advocate on record and in any event, ought to be compensated because the error is not on his part but that of the Appellant and his advocate on record.h.Transferring the appeal to the employment court amounts to commencing litigation afresh and thus leading to the Respondent incurring more cost in paying advocates instruction fee.i.This is a delaying tactic that is improvised by the Applicant where he doesn’t want the Respondent to enjoy the fruits of the lower court’s judgment.
Issue for Determination
4.It is clear from the foregoing pleadings that the main issue for determination in the Application before this Court is whether or not the appeal herein should be transferred to the Employment and Labour Relations Court at Meru.
5.The instant Application is expressed to have been brought under the provisions of Section 18(1)(b)(ii) of the Civil Procedure Act (Cap 21 of the Laws of Kenya) and Order 51, Rule of the Civil Procedure Rules.
7.The Employment and Labour Relations Court (ELRC) is established under Article 162 (2) (a) of the Constitution of Kenya (2010). The Court is operationalised under the Employment and Labour Relations Court Act No. 20 of 2011 and it is a specialised court with the status of the High Court.
8.In this case, the Appellant’s claim is purely an employment matter and this Court has been invited to find that it does not have jurisdiction to hear the matter and, therefore, to transfer the suit to the Employment and Labour Court at Meru.
9.Counsel for the Applicant has relied on the High Court decision in Pamoja Women Development Programme & 3 others v Jackson Kihumbu Wangombe & another  eKLR, where the Court (Prof. Joel Ngugi, J.) admirably considered the issue whether the High Court can transfer a suit to the Environment and Land Court, and held as follows:
11.I am persuaded by the above authority as it has analyses the issue properly. It is my view that with regard to the overriding objective of the Civil Procedure Act is provided under Section 1A &1B of the Act and to the principle of substantial justice encapsulated under the provision of Article 159 of the Constitution of Kenya, the proper course to take in this case is to transfer the matter to the correct court so as to avoid expensive delays in the substantive determination of dispute.
12.In view of all the foregoing, and having considered rival submissions presented by counsels for both parties herein, it is my opinion that the appeal herein ought to have been filed in the Employment and Labour Relations Court at Meru. Consequently, I opine that the Notice of Motion Application dated 30th June, 2023 ought to be allowed in terms of prayer no. 1 in the Application.
13.As for the prayer for costs, it is my view that since the Respondents have been inconvenienced and have been forced to incur extra costs for having to entertain the present appeal and application due to the action of the Applicant in wrongly filing this matter before this Court, it is only just that the Respondent should be compensated for the costs of the instant Application and the appeal.In the circumstances I award the costs to the respondent. I order that this appeal shall be transferred to the Employment and Labour Relations Court at Meru.