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ELRCDismissedNot stated in judgment

Alfred Kiprono Kirui v James Finlay (K) Limited [2020] KEELRC 1478 (KLR)

Employment and Labour Relations Court
2 March 2020
737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent filed a notice of preliminary objection on 8th February 2019 arguing that the Employment and Labour Relations Court lacked jurisdiction to entertain the claimant's work injury claim at first instance, that jurisdiction lay with the Director of Occupational Safety and Health Services under sections 16, 23(1), 52(1) and (2) and 58(2) of the Work Injury Benefits Act, 2007, and that the suit was incompetent and bad in law. The claimant alleged that on 14th June 2012, while welding steel at the respondent's power generator room, he was hit by a slug and injured his right eye. He filed a memorandum of claim in December 2018 seeking general and special damages for breach of statutory duty and negligence. Only the respondent filed written submissions; the claimant neither attended nor complied with the direction to file submissions. Relying on Saidi Mohamed v Diamond Industries Ltd and the Court of Appeal decision in Attorney General v Law Society of Kenya, the respondent submitted that the claimant had to exhaust WIBA procedures before approaching the court. The court accepted that all work injury claims lie first with the Director, noting the Supreme Court's clarification in LSK v Attorney General that section 16 of WIBA is not an ouster clause but facilitative. Concluding that it lacked original and statutory jurisdiction and that the claim filed in 2018 for a 2012 accident was out of time, the court allowed the objections and awarded the respondent costs due to the claimant's non-attendance.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to entertain a work injury claim at first instance under the Work Injury Benefits Act, 2007
  2. 2.Whether the claimant's suit is competent and properly before the court

Key legal issues

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01

Whether the ELRC has jurisdiction to hear a WIBA work injury claim at first instance

Holding

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.

Reasoning

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.

p. 2
02

Whether the claim filed in 2018 for a 2012 injury was competent

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The respondent's preliminary objections are allowed as having merit
  2. 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

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

majority

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

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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

p. 2

Costs

The respondent is awarded costs as the claimant failed to attend and address the objections as directed.

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.

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.
p. 2Disposition - preliminary objections allowed with costs
this court lacks the original and statutory jurisdiction to hear the matter which relates to work injury
p. 2Lack of original jurisdiction over WIBA claims
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.
p. 2Section 16 WIBA is not an ouster clause (Supreme Court, quoted)
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
p. 1Statutory bar in section 16 WIBA

Issues in the judgment

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minor

Filing date of the memorandum of claim stated inconsistently as 5th December 2018 and 6th December 2018 within the same judgment

minor

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

minor

The formal dismissal or striking out of the claim is not expressly stated; only that the objections are allowed

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, "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.