Dickson Otieno Ndaga v China Jiangsu International [2021] KEELRC 281 (KLR)
The bottom line
#An injured worker's case was moved to the Chief Magistrates Court in Kisumu because the court agreed work injury claims can be heard there.
What this practically means
#Executive summary
#Key legal issues
#Whether work injury suits fall within section 12 of the Employment and Labour Relations Court Act
The ELRC Act is not the only source of the Court's jurisdiction; other statutes including WIBA confer jurisdiction on the Court
The Court held that section 12 of the ELRC Act is the primary source of jurisdiction but not the exclusive one. Other primary statutes such as the Work Injury Benefits Act, the Employment Act, the Labour Institutions Act and the Labour Relations Act also grant the Court jurisdiction. Therefore the absence of an express reference to work injury suits in section 12 did not defeat the Court's jurisdiction.
Whether the Claimant was obliged to first approach the Director of Occupational Health and Safety
At the time of filing in 2015, the High Court's declaration invalidating section 16 of WIBA was still in force, so direct recourse to the courts reflected the correct legal position
The High Court had on 4 March 2009 declared section 16 of WIBA invalid, and there was no evidence of a stay by the Court of Appeal. The judge-declared law until 17 November 2017 was that the requirement to approach the Director was not part of the laws of Kenya. The Claimant's decision to move the Court directly was therefore underpinned by the existing state of the law, and the objection based on the Director's first-instance jurisdiction failed.
Whether the Gazette Notice delegating work injury jurisdiction to Magistrates barred direct filing in the ELRC
The delegation did not remove the ELRC's own jurisdiction
The Chief Justice delegated jurisdiction over work injury claims to the Senior Resident Magistrates Court and above through Gazette Notice No. 9243 of 2011, but the Court held that the jurisdiction nonetheless remained with the ELRC. The objection that the Claimant should have moved the Magistrates Court was not determinative of the Cause before a hearing on the merits.
Legal principles established
#- Jurisdiction over work injury claims delegated to the Magistrates Court by Gazette Notice does not oust the ELRC's own jurisdiction
- Between 4 March 2009 and 17 November 2017, the judge-declared law was that the requirement to first approach the Director of Occupational Safety and Health under WIBA was not part of the laws of Kenya
Court orders
#- 1.The Cause be transferred to the Chief Magistrates Court sitting in Kisumu for expeditious hearing and determination
- 2.The parties to appear before the Chief Magistrates Court on 14 December 2021 for directions on hearing on a priority basis
- 3.The Deputy Registrar to notify the parties of these orders forthwith
- 4.Costs in the cause
- Jurisdiction invoked
- Section 12, Employment and Labour Relations Court Act; sections 10(5), 16, 23(1) and 53, Work Injury Benefits Act raised in objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Otieno Ndaga v China Jiangsu International [2021] KEELRC 281 (KLR)", Case Analysis (2021). Cause (not stated in judgment; Cause filed 22 October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/281/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.