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ELRCOtherNot stated in the judgment· [2021] KEELRC 622 (KLR)

Vincent Mwatsuma Nguma & 5 others v Kilifi Mariakani Water & Sewerage Co Ltd (KIMAWASCO) [2021] KEELRC 622 (KLR)

Employment and Labour Relations Court of Kenya
6 October 2021
BMB. O. M. Manani
2,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled it cannot transfer cases between magistrates' courts under Civil Procedure rules, so parties must invoke the correct legal provisions.

What this practically means

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Executive summary

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The Applicants, former employees of the Respondent allegedly unfairly terminated between 2014 and 2019, had pending claims before the Chief Magistrate's Court at Malindi. They moved the ELRC, unopposed, seeking transfer of those claims to the Kilifi Chief Magistrate's Court under section 18(b) of the Civil Procedure Act read with section 9(2) of the Magistrates' Court Act. The court framed the threshold question as whether the ELRC, a court of equal status but distinct jurisdiction from the High Court, could entertain transfer applications at all. Examining the definitions of 'High Court' in the Civil Procedure Act and the Interpretations and General Provisions Act, both of which predate and do not accommodate the article 162(2) courts, and applying the Supreme Court's decision in Republic v Karisa Chengo, Manani J held that sameness of status does not mean sameness of jurisdiction. Section 18(b) confers transfer powers on the High Court only and does not contemplate article 162(2) courts. The court further surveyed conflicting ELRC authority on borrowing from the Civil Procedure Act to fill gaps in the ELRC (Procedure) Rules, 2016, concluding that resort to the Civil Procedure Act is permissible only where the ELRC Rules sanction it, and that unlike the Mutunga Rules, the ELRC Rules contain no inherent-power saving provision. Holding that the mis-citation of provisions was jurisdictional rather than technical, the court declined to grant the transfer orders, advised the parties to move the court appropriately, and made no order as to costs. The judgment also calls for urgent review of the scanty ELRC Rules.

Key legal issues

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01

Whether section 18(b) of the Civil Procedure Act empowers the ELRC to transfer suits between subordinate courts

Holding

It does not. Section 18(b) grants that power to the High Court, and the Civil Procedure Act does not contemplate article 162(2) courts, so invocation of the section before the ELRC raises a jurisdictional rather than technical defect.

Reasoning

The court analysed the definitions of 'High Court' in the Civil Procedure Act and the Interpretations and General Provisions Act, neither of which accommodates courts established under article 162(2). Relying on Republic v Karisa Chengo, it held that equality of status does not mean equality of jurisdiction. Since section 18 addresses the High Court specifically, the ELRC cannot assume that power.

p. 2
02

Whether the Civil Procedure Act and Rules can fill lacunas in the ELRC (Procedure) Rules, 2016

Holding

They cannot, unless the ELRC Rules themselves sanction resort to them; unlike the Mutunga Rules, the ELRC Rules contain no saving of inherent power akin to section 3A of the Civil Procedure Act.

Reasoning

The court noted conflicting judicial views: Rika J and Benedict Ojou Juma held the ELRC is a special-jurisdiction court with its own rules, while Marete J allowed borrowing from the Civil Procedure Act. The court distinguished Makau J's approach under the Mutunga Rules, which expressly save inherent power, and held that the absence of a similar provision in the ELRC Rules makes such borrowing contestable.

p. 2

Legal principles established

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  • The High Court and the article 162(2) courts enjoy sameness of status but are distinct and exercise distinct jurisdiction; sameness of status is not sameness of jurisdiction over matters generally
  • Only the ELRC (Procedure) Rules, 2016 govern procedure before the ELRC; the Civil Procedure Act and Rules may be resorted to only where the ELRC Rules sanction it
  • Jurisdiction is donated by law and where a court lacks it, its decision amounts to a nullity

Court orders

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  1. 1.The court declined to grant the orders sought in the application for transfer
  2. 2.The parties were advised to move the court appropriately (under the correct provisions)
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 18(b); section 2; section 3A
  • Magistrates’ Court Actsection 9(2)
  • Constitution of Kenya, 2010article 162; article 162(2); article 165(5)
  • Employment and Labour Relations Court Act, 2007section 4; section 12; section 27; section 3(1); section 12(3)(viii)
  • Interpretations and General Provisions Act Cap 2 Laws of Kenyadefinition of 'High Court'
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17; Rule 28(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)rule 3(8)

Cases cited (5)

  • Prisca Jepngétich v Generation Career Readiness Social Initiative Limited
    [2021] eKLR
  • Benedict Ojou Juma & 10 others v A. J. Pereira & Sons Limited
    [2016] eKLR
  • Francis Kimutai Bii v Kaisugu (K) Ltd
    [2016] eKLR
  • Kitty Njiru v Nature & Style Fun Day Events & another; Rebecca Muriuki t/a Kahaari (Proposed third Party)
    [2020] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2007 section 4 as read with article 162 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vincent Mwatsuma Nguma & 5 others v Kilifi Mariakani Water & Sewerage Co Ltd (KIMAWASCO) [2021] KEELRC 622 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/622/eng@2021-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.