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ELRCDismissedNot stated in judgment (memorandum of claim dated 27th April 2018; notice of preliminary objection dated 18th December 2018)· [2020] KEELRC 1713 (KLR)

Johnson Waweru Kamau v Safaricom Limited [2020] KEELRC 1713 (KLR)

Employment and Labour Relations Court
31 January 2020
MOMaureen Onyango
1,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court confirmed it can hear unfair termination and work injury claims together, rejecting an attempt to strike out the combined case.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection dated 18th December 2018 seeking to strike out the claimant's memorandum of claim and dismiss the suit, arguing that the dispute was a work injury benefit claim disguised as an unfair termination claim; that the ELRC lacked jurisdiction over occupational disease claims which fall to the Director of Occupational Safety and Health Services under the Work Injuries Benefits Act, 2007; and that the court's WIBA jurisdiction was appellate only. The objection was disposed of by written submissions. The respondent relied on Owners of the Motor Vessel 'Lillian S', the Attorney General v Law Society of Kenya decision upholding WIBA's constitutionality, and Mukisa Biscuits on the nature of preliminary objections. The claimant argued the claim was principally for unlawful termination with ancillary injury claims, invoked Order 2 Rule 15 of the Civil Procedure Rules and D.T. Dobie v Muchina on the sparing exercise of the power to strike out. The court held the memorandum contained two causes of action - unfair termination and damages for work injuries - and that striking out the entire suit would leave the claimant with no remedy on the termination claim, which the objection did not address. The court further held it had jurisdiction over work injury claims arising between employer and employee when intertwined with a termination claim, and could refer the injury for assessment and deliver one judgment. The preliminary objection was dismissed with costs.

Key legal issues

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01

Nature and effect of the preliminary objection

Holding

The objection fails because it would not dispose of the whole suit, which contains two causes of action

Reasoning

The memorandum of claim combines unfair termination and work injury claims. Striking out the entire suit would leave the claimant without a remedy for unfair termination, which the objection does not address. A preliminary objection must be capable of disposing of the entire suit to succeed.

p. 3
02

Jurisdiction of the ELRC over work injury claims

Holding

The court has jurisdiction over work injury disputes arising between employer and employee where intertwined with a termination claim

Reasoning

Work injury cases are disputes between employer and employee. The termination claim cannot be divorced from the injury claim because the termination allegedly arose from the occupational injury. Rather than compel two proceedings, the court may refer the injury for assessment and pronounce one judgment on the whole suit.

p. 3

Legal principles established

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  • A preliminary objection ought to be raised only where it is likely to dispose of the entire suit
  • The ELRC has jurisdiction over work injury claims arising between employer and employee in the context of an employment dispute; a mixed suit may be heard together with the injury claim referred for assessment

Court orders

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  1. 1.The preliminary objection dated 18th December 2018 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 12(1)-(4), 12, 12(5)(b), 2(a)
  • Work Injuries Benefits Act, 2007Sections 16, 51, 52
  • Constitution of KenyaArticle 162(2)(a)
  • Civil Procedure RulesOrder 2, Rule 15

Cases cited (6)

  • Owners of the Motor Vessel "Lillian S" -V- Caltex Oil (Kenya) Limited
    (1989)
  • Mutunga Tea and Coffee Company –V- Shikara Limited and Another
    Mombasa HCCC No. 171 of 2011 (2010) eKLR
  • Hon. Attorney General –V- Law Society of Kenya and Another
    Nairobi Civil Appeal No. 133 of 2011 (2017) eKLR
  • Mukisa Biscuits Manufacturing Company Limited –V- West End Distributors Limited
    (1969) EA 696
  • Nzele David Nzomo –V- Moses Namayi Anyangu and Another
    (2009) eKLR
  • D. T. Dobie and Company (Kenya) Limited -V- Muchina
    (1982) KLR 1
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya; 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Waweru Kamau v Safaricom Limited [2020] KEELRC 1713 (KLR)", Case Analysis (2020). Not stated in judgment (memorandum of claim dated 27th April 2018; notice of preliminary objection dated 18th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1713/eng@2020-01-31

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