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ELRCDismissedCause No. 1 of 2014 (originally HCCA No. 186 of 2011, High Court at Kisumu)· [2016] KEELRC 1449 (KLR)

Abyssina Iron & Steel Ltd v Douglas Momanyi Ondara (Appeal 01 of 2014) [2016] KEELRC 1449 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
29 January 2016
3,378 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Industrial Court at Kisumu against the ruling of Senior Resident Magistrate Obutu delivered on 6th December 2011 in Kisumu CMCC No. 99 of 2011, dismissing the Appellant's preliminary objection contesting the magistrate's court's jurisdiction to hear a claim by Douglas Momanyi Ondara for general damages for injuries allegedly suffered in the course of employment as a casual labourer. The appeal was originally filed in the High Court at Kisumu as HCCA No. 186 of 2011 and transferred to the Industrial Court on 9th December 2013. The Appellant argued, on five grounds, that Sections 87(1) and (2) of the Employment Act and Sections 16(1) and (2) of the Labour Institutions Act designated the Industrial Court as the only competent forum, and that Section 29 of the Industrial Court Act and Gazette Notice No. 9243 of 2011 purporting to confer jurisdiction on magistrates' courts were unconstitutional for conflicting with Article 162(2)(a). Only the 35th Respondent filed submissions, contending that Article 162 must be read with Article 169(2), that statutes enjoy a presumption of constitutionality, and that Section 29 of the Industrial Court Act validly donates jurisdiction to magistrates' courts. The Court (Onyango, J) held that workplace injury claims are not employment and labour relations disputes but fall under the Work Injury Benefits Act; since the High Court in Petition No. 185 of 2008 declared key sections of that Act, including Section 52, unconstitutional, such claims proceed under common law in ordinary courts. Article 162(3) permits Parliament to determine the jurisdiction of the courts under Article 162(2), and Section 29(3) and (4) of the Industrial Court Act and Gazette Notice No. 9243 of 2011 validly confer jurisdiction on designated magistrates' courts. The appeal was dismissed with costs on 29th January 2016.

Key legal issues

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01

Whether the Chief Magistrate's Court had jurisdiction over work injury claims

Holding

The magistrate's court had jurisdiction; work injury cases are not employment and labour relations disputes under the Employment Act but are governed by the Work Injury Benefits Act or common law, and magistrates' courts were validly designated to hear them.

Reasoning

The Court held that workplace injury claims are not 'employment and labour relations' disputes within Article 162(2)(a) but fall under the Work Injury Benefits Act. Since key sections of that Act, including Section 52 conferring appeal jurisdiction on the Industrial Court, were declared unconstitutional in Petition No. 185 of 2008, such claims revert to common law in ordinary courts. Section 29(3) and (4) of the Industrial Court Act, enacted under Article 162(3), plus Gazette Notice No. 9243, validly confer jurisdiction on designated magistrates' courts.

p. 6
02

Constitutionality of Gazette Notice No. 9243 of 2011 and Section 29 of the Industrial Court Act

Holding

The Gazette Notice issued pursuant to Section 29(4)(b) of the Industrial Court Act is legitimate and not inconsistent with the Constitution; Article 162(3) permits Parliament to determine and limit the jurisdiction of courts under Article 162(2).

Reasoning

The Court reasoned that Article 162(3) allows Parliament to determine the jurisdiction and functions of the courts established under Article 162(2), and the Industrial Court Act was enacted pursuant to that power. Section 29(3) and (4) permit the Chief Justice to appoint magistrates to hear employment and labour disputes, and Gazette Notice No. 9243 was issued under that provision. A statute enjoys a presumption of constitutionality, and the Appellant failed to demonstrate any inconsistency with Articles 162(2)(a) or 169(2).

p. 7

Legal principles established

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  • Cases of injury at the workplace are not employment and labour relations disputes; they fall under the Work Injury Benefits Act or common law, and tortious claims arising from employer/employee relations lie in the ordinary courts, not the Industrial Court
  • Section 29(3) and (4) of the Industrial Court Act and Gazette Notice No. 9243 validly confer jurisdiction on magistrates' courts, of the rank of Senior Resident Magistrate and above, to hear work injury and employment and labour relations matters

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 159(1),(2),(3); 162(2)(a), 162(3); 169(1),(2); 2(1),(2),(4); 163; 164; 165
  • Employment ActSections 87(1),(2); 92; 121
  • Labour Institutions ActSections 16(1),(2); Part III (repealed)
  • Industrial Court ActSections 4(2); 11; 12(1); 18; 29(3),(4); 35
  • Work Injury Benefits ActSections 4, 7(1),(2), 10(4), 16, 21(1), 23(1), 25(1),(3), 52(1),(2), 58(2)
  • Workmen's Compensation Act (repealed)
  • Gazette Notice No. 9243 of 2011 (Labour Institutions Act - Designation of Magistrates Courts)
  • Occupational Safety and Health Act, 2007
  • Labour Relations Act, 2007

Cases cited (7)

  • International Centre for Policy and Conflict & Others v Attorney General and others
    [2013] EA 141
  • Karisa Chengo & 2 others v Republic
    [2015] eKLR
  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
  • Tinyefunza v AG, Constitutional Appeal No. 1 of 1997
  • South Dakota v North Carolina
    1992, US 268 1940 LED 448
  • Ndyanabo v AG
    [2001] EA 495
  • Edward Mwaniki Gaturo v Hon. Attorney General & 3 Others
    [2013] eKLR
On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMCC No. 99 of 2011
Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 12(1) of the Industrial Court Act and Section 18 of the Industrial Court Act (appellate jurisdiction from Magistrates' Courts)

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, "Abyssina Iron & Steel Ltd v Douglas Momanyi Ondara (Appeal 01 of 2014) [2016] KEELRC 1449 (KLR)", Case Analysis (2016). Cause No. 1 of 2014 (originally HCCA No. 186 of 2011, High Court at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1449/eng@2016-01-29

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