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ELRCDismissedKakamega Civil Appeal No.142 of 2011 (transferred from Mumias SRMCC No.156 of 2005)· [2016] KEELRC 435 (KLR)

Ibrahim Tanga Nandeli v N. K. Bhatia & Another [2016] KEELRC 435 (KLR)

Employment and Labour Relations Court
15 September 2016
2,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that work injury appeals belong in the Employment and Labour Relations Court, and a consent transfer order can only be undone by the court that made it.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Kisumu (Onyango J) determines a motion dated 27th February 2016 by the 2nd Respondent seeking a declaration that the proceedings in Mumias SRMCC No.156 of 2005 fall outside the court's jurisdiction and an order transferring the appeal back to the High Court at Kakamega. The underlying suit was a road traffic accident claim in which the appellant, injured while a passenger aboard motor vehicle KAG 173 U in June 2001, pleaded both negligence against the 1st Respondent as vehicle owner and, in the alternative, breach of the 2nd Respondent's duty as his employer. The magistrate dismissed the case against the 2nd Respondent, and the appeal to the High Court at Kakamega was transferred to the Industrial Court by a consent order recorded before Mrima J. The 2nd Respondent argued no employment dispute existed, relying on Samuel Kamau Macharia on jurisdiction flowing from the Constitution and legislation. The court held the application incompetent on two grounds: review or setting aside of a consent order lies only in the court that made it and the orders had not been extracted; and, substantively, since the injuries arose in the course of employment, the court's appellate jurisdiction under section 18 of the Employment and Labour Relations Act was engaged, with the Workmen's Compensation Act then governing such claims. The court distinguished Samuel Kamau Macharia, finding it supported the appellant. The application was dismissed with costs to the appellant.

Key legal issues

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01

Jurisdiction of the ELRC over appeals from magistrates' courts in work-injury road traffic accident claims

Holding

The court has appellate jurisdiction under section 18 of the Employment and Labour Relations Act because the injuries arose in the course of employment

Reasoning

The suit pleaded that the plaintiff was employed by the 2nd Defendant and injured in the course of employment aboard the employer's motor vehicle. The applicable regime at the time was the Workmen's Compensation Act (repealed), which covered injuries sustained in the course of employment and permitted claims under both the Act and common law. Section 52(2) of the Work Injury Benefits Act places work injury appeals in this Court. The Samuel Kamau Macharia decision cited by the applicant actually supported the appellant's case.

p. 5
02

Competence of the application to set aside or review a consent transfer order

Holding

The application was incompetent: review or setting aside of a consent order lies only in the court that made it, and the orders had not been extracted

Reasoning

The transfer to the Industrial Court was effected by a consent order recorded before Mrima J in the High Court at Kakamega. Both review and setting aside can only be done by the court in which the orders were made; the orders had not been extracted, so the application was made in the wrong court. No grounds justifying setting aside the consent order, such as fraud, collusion or misapprehension, were alleged.

p. 5

Legal principles established

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  • A consent order has contractual effect and can only be set aside or varied on grounds which would justify setting aside a contract, and only by the court that made it

Court orders

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  1. 1.The application dated 27th February 2016 is dismissed
  2. 2.Costs of the application to the appellant

Authorities

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Legislation

  • Employment and Labour Relations Actsection 12(1)
  • Employment and Labour Relations Actsections 4(2) and 18
  • Employment and Labour Relations Court Actsections 12 and 29
  • Constitution of KenyaArticle 162(2)
  • Work Injury Benefits Actsections 10 and 52(2)
  • Workmen's Compensation Act (repealed)not specified
  • Civil Procedure Act (Cap 21)section 67(2)

Cases cited (9)

  • Samuel Kamau Macharia v Kenya Commercial Bank and Others
    [2012] eKLR
  • Kiamoka Tea Factory Company Limited v Joshua Nyakoni
    Kisii HCC Appeal No.169 of 2009
  • Wasike v Wamboko
  • Brooke Bond Liebig Ltd v Mallya
    [1975] EA 266
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd
  • Hirani v Kassam
    [1952] 19 EACA 131
  • J. M. Mwakio v Kenya Commercial Bank Limited
    Civ Apps 28 of 1982 and 69 of 1983
  • Purcell v F.C. Trigell Ltd
    [1970] 3 All ER 671
  • Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd
    [1982] KLR 485
On appeal from
Chief Magistrate's Court (Mumias)
Mumias SRMCC No.156 of 2005
Jurisdiction invoked
Section 18 of the Employment and Labour Relations Act; section 52(2) of the Work Injury Benefits Act

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, "Ibrahim Tanga Nandeli v N. K. Bhatia & Another [2016] KEELRC 435 (KLR)", Case Analysis (2016). Kakamega Civil Appeal No.142 of 2011 (transferred from Mumias SRMCC No.156 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/435/eng@2016-09-15

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