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Court of AppealPartially AllowedNot stated in judgment (appeal from ELRC Cause No. 1124 of 2023)

Kirinyaga Construction Limited v Ndungu (Suing as the Administrator of the Estate of Francis Ndungu Githinji) (Civil Appeal 392 of 2019) [2025] KECA 1734 (KLR)

Court of Appeal
24 October 2025
3,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a widow's workplace death claim because she filed it under the wrong law instead of following the Work Injury Benefits Act procedure.

What this practically means

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Executive summary

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The respondent, widow and administrator of a deceased lorry driver, filed a Memorandum of Claim in the Employment and Labour Relations Court seeking general damages under the Fatal Accidents Act and Law Reform Act for the deceased's death in a towing accident on 9th July 2007. The ELRC Judge found the deceased died in the course of duty and, without making any award under the pleaded statutes, confirmed and adopted the District Labour Officer's 2007 award of Kshs.1,116,000 with interest from 2007, treating the claim as if it were an Objection under section 52 of the Work Injury Benefits Act. The employer appealed, contending the Judge assumed a jurisdiction not available to her. The Court of Appeal identified three issues: propriety of the suit before the trial court, the reliefs awarded, and pre-trial interest. Holding that only an objector aggrieved by a Director's decision may invoke the court under Part VIII of WIBA, and that the respondent never lodged an objection, the Court found the prescribed statutory procedure had not been followed and could not be cured by Article 159. It identified two fundamental errors: treating a Memorandum of Claim as an Objection, and making a second award when no negligence was proved, producing two decisions for one cause of action. The Court set aside the ELRC judgment, dismissed the claim, and made no order as to costs, acknowledging the respondent may have been misled by uncertainty in the law on WIBA claims.

Questions the Court framed

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

  1. 1.whether suit was properly before the trial court
  2. 2.whether the learned Judge erred in awarding the reliefs sought
  3. 3.whether interest ought to have been awarded from 2007

Key legal issues

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01

Whether the claim was properly before the ELRC when filed as a Memorandum of Claim rather than an Objection/appeal under the Work Injury Benefits Act

Holding

The claim was not properly before the trial court; the procedure prescribed under WIBA was not complied with and the court could not assume jurisdiction over a claim brought in the wrong form

Reasoning

Part VIII of WIBA prescribes that only a person aggrieved by a decision of the Director may lodge an objection, and only an objector may appeal to the court after the Director's reply. Here the respondent, who was not objecting to the award, instituted a Memorandum of Claim for general damages under the Law Reform Act and Fatal Accidents Act without bringing the claim under WIBA. Following Speaker of National Assembly v Njenga Karume and Jaldesa Tuke Dabelo, the prescribed procedure had to be strictly followed and Article 159 could not cure the defect.

p. 5
02

Whether the learned Judge erred in awarding reliefs

Holding

The Judge committed two fundamental errors: treating the Memorandum of Claim as an Objection when the objection procedure was not followed, and making a second award under the guise of affirming the Labour Officer's award when no negligence was proved

Reasoning

The claim as pleaded was for general damages under the Law Reform Act and Fatal Accidents Act, yet the Judge made no finding under either statute. Instead she confirmed the Labour Officer's award of Kshs.1,116,000 as if the matter were an adoption of that report, creating a convolution of awards and effectively two decisions for the same cause of action, without evidence of negligence supporting the claim.

p. 5
03

Whether interest ought to have been awarded from 2007

Holding

Not determined; the issue was dependent on the first issue, which the court resolved by setting aside the judgment

Reasoning

Having found the trial judgment liable to be set aside on the first issue, the Court found it unnecessary to deal with the remaining issues, including interest, since they were dependent on the determination of the first issue.

p. 6

Legal principles established

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  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed; Article 159 does not confer jurisdiction or shelter a litigant who ignores statutory procedure.
  • A first appellate court is under a duty to re-evaluate the evidence before the trial court and reach its own conclusions.
  • A trial court cannot treat a claim filed in one form as if it were a claim of a different kind without following the prescribed procedure; doing so ambushes the opposing party.

Court orders

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  1. 1.Set aside the judgment delivered on 18th July 2018 in ELRC Cause No. 1124 of 2023
  2. 2.Substitute therefor an order dismissing the claim
  3. 3.Make no order as to costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
ELRC Cause No. 1124 of 2023 (as recorded in the final orders; claim originally filed 2013)
Jurisdiction invoked
First appeal under rule 31(1)(a) of the Court of Appeal Rules as read with section 78 of the Civil Procedure Act

Relief refused

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Confirmation of the award of Kshs.1,116,000 with interest from 2007

The claim was brought by Memorandum of Claim under the Law Reform Act and Fatal Accidents Act, not as an Objection under WIBA; the statutory procedure was not followed and no negligence was proved

p. 5

Costs

No order as to costs - each party to bear their own costs (court made no order as to costs considering the respondent may have been misled by uncertainty in the state of the law)

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.

Consequently, we find merit in this appeal, set aside the judgment delivered on 18th July 2018 in ELRC Cause No. 1124 of 2023 and substitute therefor an order dismissing the claim.
p. 6Final orders - appeal allowed, judgment set aside and claim dismissed
where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
p. 5Strict compliance with prescribed procedure
Article 159 of the Constitution or the Overriding Objective principles are not blanket provisions that shelter a party who disregards the proper forum or jurisdictional competence of a court or fails to follow the procedure for commencing a cause of action.
p. 5Article 159 cannot cure wrong procedure
The making of the award had the efiect of having two decisions for the same cause of action.
p. 6Error of double award for one cause of action
Considering that the respondent may have been misled by the uncertainty in the state of the law regarding the legal position of the claims under the Work Injury Benefits Act at that time, we make no order as to costs.
p. 6Costs order

Issues in the judgment

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material

The cause number of the appeal from the ELRC is recorded inconsistently: the claim was filed on 18th July 2013 and the impugned judgment was delivered on 18th July 2018, yet the final orders refer to 'ELRC Cause No. 1124 of 2023', a date that appears irreconcilable with the pleaded chronology.

minor

The name and case number of the appellant in this appeal are not stated anywhere in the judgment text; the parties are referred to only as 'the appellant' and 'the respondent'.

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, "Kirinyaga Construction Limited v Ndungu (Suing as the Administrator of the Estate of Francis Ndungu Githinji) (Civil Appeal 392 of 2019) [2025] KECA 1734 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from ELRC Cause No. 1124 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1734/eng@2025-10-24

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