Alfred Kiprono Kirui v James Finlay (K) Limited [2020] KEELRC 1478 (KLR)
The bottom line
#Kenya's Employment Court confirmed it cannot hear work injury claims directly; injured workers must first report to the Director of Occupational Safety and Health Services.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to entertain a work injury claim at first instance under the Work Injury Benefits Act, 2007
- 2.Whether the claimant's suit is competent and properly before the court
Key legal issues
#Whether the ELRC has jurisdiction to hear a WIBA work injury claim at first instance
The court lacks original and statutory jurisdiction; the claim must first be presented to the Director of Occupational Safety and Health Services, with appeals to the court thereafter.
WIBA is the statute regulating work injury claims. Section 16 bars an action for damages against an employer save under the Act. Reading sections 16, 23 and 52 together, redress lies in the ELRC on appeal from the Director's decision, not as a court of first instance. Following Saidi Mohamed v Diamond Industries Ltd, the claimant had to exhaust the WIBA procedure before approaching the court.
Whether the claim filed in 2018 for a 2012 injury was competent
The claim filed on 5th/6th December 2018 for a cause of action arising on 14th June 2012 was out of time and incompetent in a court lacking original jurisdiction.
The court noted the delay between the accident of 14th June 2012 and filing in December 2018, observing that even a reference to the appropriate forum could not cure the defect since the court lacked original and statutory jurisdiction over work injury claims.
Legal principles established
#- Section 16 of WIBA read with sections 23 and 52 does not oust the ELRC's jurisdiction; the Act provides legal redress to the ELRC, and section 16 is merely facilitative rather than an ouster clause.
- All claims relating to work injury lie with the Director of Occupational Safety and Health Services at the first instance, with a right of appeal to the court upon the Director's decision.
- Section 16 of WIBA bars an action for damages against an employer in respect of occupational accidents or diseases save under the provisions of the Act.
Court orders
#- 1.The respondent's preliminary objections are allowed as having merit
- 2.The respondent is awarded costs of the objection owing to the claimant's failure to attend and address the court as directed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court framework; objection founded on sections 16, 23(1), 52(1) and (2) and 58(2) of the Work Injury Benefits Act, 2007
Relief refused
#Claimant's claim for general and special damages for work-related eye injury
The court lacks original and statutory jurisdiction over work injury claims which must first go to the Director of Occupational Safety and Health Services; the claim was also filed out of time
Costs
The respondent is awarded costs as the claimant failed to attend and address the objections as directed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the objections by the respondent are found with merit and are hereby allowed. As the claimant failed to attend and address as directed, the respondent is hereby awarded costs.
this court lacks the original and statutory jurisdiction to hear the matter which relates to work injury
It cannot, therefore, be the case that section 16 amounts to an ouster clause. It is in fact merely facilitative of what may eventually end up in Court.
No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease
Issues in the judgment
#Filing date of the memorandum of claim stated inconsistently as 5th December 2018 and 6th December 2018 within the same judgment
The judgment states the Court of Appeal position in Attorney General v Law Society of Kenya 'is not affirmed by the Supreme Court' but then quotes the Supreme Court at length on section 16 not being an ouster clause, which does not clearly negate the Court of Appeal's exhaustion holding; the intended reconciliation is ambiguous
The formal dismissal or striking out of the claim is not expressly stated; only that the objections are allowed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Kiprono Kirui v James Finlay (K) Limited [2020] KEELRC 1478 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1478/eng@2020-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.