Simon Ngwili Mutiso & Kitheka Wambua v Heritage Workforce [2018] KEELRC 695 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 819 OF 2017

BETWEEN

1. SIMON NGWILI MUTISO

2. KITHEKA WAMBUA.....................................CLAIMANTS

VERSUS

HERITAGE WORKFORCE (K) LTD...........RESPONDENT

RULING

1. The Claimants filed their Statement of Claim on 16th October 2017.  They aver that they were employed by the Respondent, as Supervisor and Fitter respectively, on 1 year contract, beginning 26th November 2016, ending 26th November 2017.

2. They were suspended by the Respondent on 21st February 2017.  They were not allowed back to work after suspension.  They seek damages for breach of contract; overtime pay; general damages for unfair termination; defamation of character (?); costs and interest.

3. The Respondent has filed a Notice of Preliminary Objection.  Objection is based on the grounds that:  the Claimants’ contracts were executed in Nairobi; Respondent’s Head Office is in Nairobi; the Claimants worked at sites in Emali; and they are residents of Nairobi.

4. Parties agreed to have Objection considered and determined on the strength of Submissions.  They confirmed filing of Submissions at the last mention in Court, on 17th September 2018.

The Court Finds:-

5. The Court agrees with the Claimants that its proceedings are not governed by the Civil Procedure Act and Rules.  The Court’s proceedings are regulated by the Employment & Labour Relations Court (Procedure) Rules 2016.

6. That said, there must be some link between the Parties, the cause of action, and the place of trial.  In this Claim, the only link to the Court in Mombasa, is the Claimants’ Advocate, B.W. Kenzi & Co. Advocates, housed at N.S.S.F. Building, Mombasa.

7. The Claimants state in their Witness Statements that they are residents of Nairobi.  The Respondent  is a Company with a Head Office in Nairobi.  The contracts of employment were executed at Nairobi, to be performed at Emali, a town closer to Nairobi than Mombasa.  There is no link between the Court in Mombasa, the Parties and the cause of action.

8. The Court does not however agree with the Respondent that the Claim should be dismissed.  An order of transfer to the Court sitting at Nairobi suffices.  There is absolutely no legal ground to justify dismissal of the Claim.

IT IS ORDERED:-

a) The Claim is hereby transferred to the Employment & Labour Relations Court, Nairobi.

b) Costs in the Cause.

Dated and delivered at Mombasa this 30th day of October 2018.

James Rika

Judge