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ELRCDismissedELRC Cause Number 399 of 2017 (Notice of Motion dated 17th March 2021)

Andrew Kimani Mwangi v G4s Security Services Kenya Limited [2021] KEELRC 1143 (KLR)

Employment and Labour Relations Court
15 July 2021
2,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it cannot take back a work injury claim sent to the magistrates' court, because it only hears such cases on appeal.

What this practically means

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Executive summary

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The Applicant, a former G4S Security Services Ltd employee who lost the eyesight of his right eye in circumstances he attributes to the Respondent's negligence and breach of statutory duty, filed a Notice of Motion dated 17th March 2021 seeking a stay of proceedings in Milimani Chief Magistrates' Court Commercial Suit No. 1141 of 2018 and the retransfer or recall of that suit to the Employment and Labour Relations Court, where his cause had originally been filed in February 2017 before being referred to the Chief Magistrates Court by order of Wasilwa J. dated 1st February 2018. He argued that following the Court of Appeal's decision in Attorney General v Law Society of Kenya, upheld by the Supreme Court in Petition No. 4 of 2019, magistrates' courts lack jurisdiction over work injury claims filed between 22nd May 2008 and 3rd December 2019, and invoked legitimate expectation and Section 18 of the Civil Procedure Act. The Respondent opposed, contending the application was an abuse of process, that the Applicant had not made a strong case for transfer, and that the ELRC has only appellate jurisdiction over work injury claims. Nzioki wa Makau J framed a single issue: whether the pending magistrates' court case was fit for transfer. The Court held that it is not the primary forum for work injury claims and may only entertain them on appeal under Section 52(2) of WIBA; being an appellate forum, it could not invite the parties to a hearing before it, and transfer would breach the Supreme Court and Court of Appeal decisions. The application was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant's case pending before the Magistrates Court is fit for transfer to this Court

Key legal issues

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Whether the ELRC has jurisdiction to withdraw and retransfer to itself a work injury claim pending before the Chief Magistrates Court under Section 18 of the Civil Procedure Act

Holding

The transfer was declined because the ELRC, being only the appellate forum for work injury claims under Section 52(2) of WIBA, cannot hear the claim at first instance; ordering transfer would breach the Court of Appeal and Supreme Court decisions declaring the impugned WIBA provisions constitutional

Reasoning

The Applicant relied on Section 18 of the Civil Procedure Act and Radido J's legitimate-expectation reasoning in West Kenya Sugar to urge transfer. The court accepted that the claim was filed when subordinate courts had authority to determine work injury claims, but held that the ELRC's jurisdiction over work injury matters is appellate only, under Section 52(2) of WIBA. Recalling the matter to itself would therefore breach binding superior-court decisions upholding WIBA's constitutionality.

p. 3

Legal principles established

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  • The ELRC is not the primary forum for work injury claims and may only entertain such matters on appeal under Section 52(2) of Part VIII of the Work Injury Benefits Act
  • A court with appellate jurisdiction over work injury claims cannot, by transfer, invite parties to a hearing before it

Court orders

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  1. 1.The Application for transfer/retransfer of Milimani Chief Magistrates' Court Commercial Suit No. 1141 of 2018 to the ELRC is declined
  2. 2.No order as to costs, the matter still being before the Magistrates Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010 and Section 18 of the Civil Procedure Act, Cap 21 (as invoked by the Applicant)

Relief refused

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Stay of proceedings in Milimani CMCC No. 1141 of 2018 and retransfer/recall of the suit to the ELRC

The ELRC is only an appellate forum for work injury claims under Section 52(2) of WIBA and cannot invite parties to a hearing before it; granting transfer would breach the decisions of the Court of Appeal and Supreme Court upholding the constitutionality of the impugned WIBA sections

p. 3

Costs of the Application

The matter remains pending before the Magistrates Court

p. 3

Costs

No order as to costs - each party to bear their own costs implicitly, as the Court stated 'I will make no order as to costs'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Respondent is correct in its surmise that this Court is not the primary forum for work injury claims but would only entertain these on the terms provided for under Section 52(2) of Part VIII of the Work Injury Benefits Act.
p. 3Jurisdiction of the ELRC over work injury claims
As such, the Court being the appellate forum cannot invite the parties to a hearing before it. The transfer is declined on this basis as there would be a breach of the decision of the Supreme Court and Court of Appeal which Courts have declared the Sections impugned in the first WIBA case at the High Court as constitutional.
p. 3Reasons for declining the transfer - final disposition
In view of the fact that the matter is still before the Magistrates Court, I will make no order as to costs. It is so ordered.
p. 3Costs order

Issues in the judgment

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minor

The affidavit of the Applicant's advocate refers to seeking directions on 5th May 2015, which predates the February 2017 filing of the cause and the February 2018 transfer order, an apparent internal date inconsistency

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Kimani Mwangi v G4s Security Services Kenya Limited [2021] KEELRC 1143 (KLR)", Case Analysis (2021). ELRC Cause Number 399 of 2017 (Notice of Motion dated 17th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1143/eng@2021-07-15

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