Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Nairobi), Application dated 11th August 2021 (arising from Mavoko CMEL No. E037 of 2021)· [2022] KEELRC 212 (KLR)

Harun Kiptarus Tanui v East African Portland Cement Plc [2022] KEELRC 212 (KLR)

Employment and Labour Relations Court
18 March 2022
MOMaureen Onyango
4,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed it can rescue employment cases wrongly filed in the Magistrates Court by transferring them instead of throwing them out.

What this practically means

#

Executive summary

#
By a notice of motion dated 11th August 2021, the Applicant sought a stay of proceedings in Mavoko CMEL No. E037 of 2021 and the transfer of that suit to the Employment and Labour Relations Court in Nairobi, on the ground that the suit had been inadvertently filed in the Chief Magistrates Court by error of counsel, which error should not be visited on the client. The Respondent opposed, arguing that the ELRC had no transfer jurisdiction under the Civil Procedure Act, that a suit filed in a court without jurisdiction is a nullity and there is nothing to transfer, and relying on Owners of the Motor Vessel 'Lillian S', Equity Bank v Mutie and Abraham Mwangi Wamigwi. The Applicant relied on Kenya Medical Research Institute v Koech, Ali Jarso Wako and John Mwangi Karanja to submit that transfer is a procedural, not jurisdictional, matter. Framing two issues, Onyango J noted that jurisprudence was divided on whether a suit filed in a Magistrates Court without pecuniary jurisdiction can be transferred, and observed that no higher-court decision had resolved the question. The court adopted the reasoning in Pamoja Women Development Program, as approved in Henry Kigen, that Article 162(2) courts were not created as jurisdictional traps for good-faith litigants, and found the Supreme Court's approach in Albert Chaurembo Mumba settled the issue. The court held that it could transfer the suit under Article 159 of the Constitution and Sections 3 and 12(3) of the ELRC Act, allowed the application, stayed the lower-court proceedings, transferred the suit to the ELRC in Nairobi, and awarded costs to the Respondent in any event.

Key legal issues

#
01

Whether a suit filed in a Magistrates Court lacking pecuniary jurisdiction is a nullity incapable of transfer

Holding

The court held that such a suit can be transferred to the ELRC, disagreeing with the nullity argument

Reasoning

The court reviewed conflicting authorities: some dismissing transfer applications where the lower court lacked jurisdiction (Ruth Muthoni Mwangi v Kenya Meat Commission; Prisca Jepngetich v Generation Career Readiness) and others permitting transfer (KPAU v Cargill; Ali Jarso Wako). Finding no binding decision of the Court of Appeal or Supreme Court on the specific question, the court preferred the reasoning in Pamoja Women Development Program as adopted in Henry Kigen, that specialised courts were not created as jurisdictional booby traps against good-faith litigants. The Supreme Court's approach in Albert Chaurembo Mumba was taken as settling the issue, and the transfer was allowed in the interests of justice.

p. 4
02

Whether mistakes of counsel in filing in a wrong forum should defeat the suit

Holding

Filing in the Magistrates Court was an honest mistake of counsel which should not be visited on the client

Reasoning

Counsel submitted that the suit was filed in the Chief Magistrates Court by inadvertent error, relying on Patriotic Guards Ltd v Sambu and Belinda Murai v Amos Wainaina for the proposition that courts readily excuse mistakes of counsel where doing so affords expeditious and just disposal. The court accepted this line, reinforced by the overriding objective of the Civil Procedure Act and Article 159(2) of the Constitution, and held that transferring the suit rather than striking it out best serves the interests of justice and saves the litigant the cost of filing afresh.

p. 1

Legal principles established

#
  • The ELRC can transfer a suit filed in a Magistrates Court without pecuniary jurisdiction to itself, guided by Article 159 of the Constitution and Sections 3 and 12(3) of the ELRC Act
  • Specialised courts under Article 162(2) should not be used as jurisdictional traps against good-faith litigants who file in cognate courts

Court orders

#
  1. 1.The proceedings in Mavoko CMEL No. E037/2021; Harun Kiptanui Tarus versus East African Portland Cement be and are hereby stayed pending the hearing and determination of this Application
  2. 2.The suit filed by the Applicant against the Respondent being Mavoko CMEL No. E037/2021; Harun Kiptanui Tarus versus East African Portland Cement PLC be and is hereby transferred to the Employment and Labour Relations Court in Nairobi for hearing and determination
  3. 3.The Respondent shall have costs of this application in any event

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 18(1)(b)
  • Civil Procedure RulesOrder 21 Rule 1; Section 18(1)(b) reference
  • Employment and Labour Relations Court ActSections 3(1), 12(3)(vii) and 12(3)(viii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Constitution of KenyaArticles 48, 159(2)(d), 162(2)
  • Appellate Jurisdiction Actnot specified

Cases cited (21)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • John Mwangi Karanja v Alfred Ndiangui
    [2011] eKLR
  • Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties)
    [2020] eKLR
  • Belinda Murai & Others v Amos Wainaina
    [1978] eKLR
  • Gold Lida Limited v Nic Bank Limited & 2 others
    [2018] eKLR
  • Kenya Medical Research Institute v Davy Kiprotich Koech
    [2018] eKLR
  • Kagenyi vs Musiramo & Another
    [1968] EA 43
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Prisca Jepngetich v Generation Career Readiness Social Initiative Limited
    [2021] eKLR
  • Meeli Ole Naisewa v Benson Gachuki Kinyanjui
    [2016] eKLR
  • Gaikia Kimani Kiarie v Peter Kimani Kiramba
    [2020] eKLR
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel
    [2016] eKLR
  • Francis Kibugi Wanjohi v Kenya Railways Corporation
    [2021] eKLR
  • Ruth Muthoni Mwangi v Kenya Meat Commission
  • Kenya Plantation and Agricultural Union v Cargill Kenya Limited & Another
    [2020] eKLR
  • Pamoja Women Development Program & 3 Others v Jackson Kihimbu Wangombe & another
    [2016] eKLR
  • Henry Kigen & 6 others v Baringo County Governor & 2 others
    [2020] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; Sections 3 and 12(3)(vii)/(viii) of the Employment and Labour Relations Court Act; Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Harun Kiptarus Tanui v East African Portland Cement Plc [2022] KEELRC 212 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi), Application dated 11th August 2021 (arising from Mavoko CMEL No. E037 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/212/eng@2022-03-18

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