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ELRCOtherNot stated in judgment· [2017] KEELRC 1818 (KLR)

John Ouma Midege v Kengen Company Limited [2017] KEELRC 1818 (KLR)

Employment and Labour Relations Court
30 January 2017
HWHellen Wasilwa
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Preliminary Objection dated 22nd April 2013 seeking a declaration that the Claimant's suit was misconceived, incompetent and fatally defective, and that the Court lacked jurisdiction. The Applicant argued that the cause of action arose from a road traffic accident of 9th January 2010, a claim for damages that belonged in the civil courts, relying on Motor Vessel Lillian 'S' vs. Caltex Oil Kenya Ltd and Samuel Kamau Macharia vs. KCB on the limits of jurisdiction under Section 12 of the Industrial Court Act. The Claimant, acting in person, countered that the injury occurred in the course of employment; he reported it to the Director of Occupational Safety and Health Service under Section 22 of the Work Injury Benefits Act, his injuries were assessed at Kshs. 3,395,261.2, and the Respondent paid only Kshs. 780,264.00, leaving a balance of Kshs. 2,614,997.2 unpaid for nearly four years. He relied on Section 12 of the Employment and Labour Relations Court Act and on decided ELRC work injury cases. The Court held that its jurisdiction flows from Article 162(2) of the Constitution and Section 12 of the ELRC Act, and that it covers injuries arising out of employment. It further found that although Section 16(2) of the Labour Act, under which Gazette Notice No. 9342 of 2011 extended work injury jurisdiction to Magistrates' Courts, was repealed by the Industrial Court Act 2011, Section 24 of Cap 2 preserved the Gazette Notice, so Magistrates retain jurisdiction over work injury cases. Exercising its discretion, the Court referred the case to the CMCC Court Nairobi for hearing and determination. No costs order was made.

Key legal issues

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01

Whether the ELRC lacks jurisdiction over a work injury claim arising from a road traffic accident

Holding

The Court held it has jurisdiction over employment and labour relations matters including injury at work, flowing from Article 162(2) and Section 12 of the ELRC Act

Reasoning

The Court traced its jurisdiction to Article 162(2) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act, which confers exclusive original jurisdiction over disputes arising out of employment. It held that this includes issues arising out of injury at work, rejecting the Applicant's submission that the claim belonged exclusively in the civil courts.

p. 3
02

Whether Magistrates' Courts retain jurisdiction over work injury cases after the repeal of Section 16(2) of the Labour Act

Holding

Yes - the Gazette Notice No. 9342 of 2011 extending jurisdiction to Magistrates survived the repeal by virtue of Section 24 of Cap 2

Reasoning

Section 16(2) of the Labour Act, under which the then Chief Justice extended the Industrial Court's jurisdiction to Magistrates' Courts via Gazette Notice No. 9342 of 2011, was repealed by the Industrial Court Act 2011. However, Section 24 of the Interpretation and General Provisions Act preserves subsidiary legislation unless revoked, so the Gazette Notice remains in force and Magistrates retain jurisdiction over work injury cases.

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03

Which forum should hear the claim

Holding

The Court exercised its discretion and referred the case to the CMCC Court Nairobi

Reasoning

Although the ELRC retained its own jurisdiction over work injury cases, the Court exercised its discretion and referred the matter to the Chief Magistrate's Court, Nairobi, to be heard and determined under the jurisdiction donated by the Gazette Notice. This disposed of the preliminary objection without striking out the suit.

p. 3

Legal principles established

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  • Where an Act is repealed, subsidiary legislation issued under it remains in force unless inconsistent with the repealing Act or revoked, under Section 24 of the Interpretation and General Provisions Act (Cap 2)
  • The Gazette Notice extending work injury jurisdiction to Magistrates' Courts survived repeal of Section 16(2) of the Labour Act, so Magistrates retain jurisdiction over work injury cases

Court orders

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  1. 1.The case was referred to the CMCC Court Nairobi to be heard and determined under jurisdiction donated by Kenya Gazette Notice No. 9342 of 2011

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Work Injury Benefits ActSection 22
  • Employment and Labour Relations Court ActSections 12(1), 12(3)(v)
  • Labour ActSection 16(2)
  • Interpretation and General Provisions of Acts (Cap 2)Section 24
  • Constitution of Kenya 2010Article 162(2)
  • Kenya Gazette Notice No. 9342 of 2011

Cases cited (4)

  • Motor Vessel Lillian "S" vs. Caltex Oil Kenya Ltd
    (1989) KLR
  • Samuel Kamau Macharia vs. KCB & 2 Others
    Civil Application No 2 of 2011
  • Wilberforce Kilibwa vs. Mumias Sugar Co. Ltd
    [2013] eKLR
  • Julius Chacha Mwita vs. Kenya Airways Limited & Another
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court 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, "John Ouma Midege v Kengen Company Limited [2017] KEELRC 1818 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1818/eng@2017-01-30

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