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ELRCDismissedCause CMELRC No.845 of 2018 (application dated 14th April, 2021)· [2021] KEELRC 1496 (KLR)

Austin Oduor Odira v Kenya Sweets Limited & another [2021] KEELRC 1496 (KLR)

Employment and Labour Relations Court
10 June 2021
MMM. Mbaru
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that work injury claims seeking damages beyond a WIBA award must stay in the magistrates' court, not the Employment and Labour Relations Court.

What this practically means

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Executive summary

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The applicant, a casual labourer, lost his right arm in a workplace accident on 27th June 2016 while mixing sugar and gum at the respondents' sweets factory. The incident was reported to the Director of Occupational Safety and Health Services, who awarded him Kshs.1,720,000, which the respondents allegedly failed to pay. On 29th November 2017 the applicant filed CMELRC No.845 of 2018 before the Chief Magistrate's Court, Milimani, claiming general damages, special damages of Kshs.9,200, the Director's award of Kshs.1,720,000 with interest, and costs. By an application dated 14th April 2021 under the ELRC Act and the Civil Procedure Act, he sought transfer of the suit to the ELRC, arguing there had been confusion over which court had jurisdiction over work injury claims. Justice M. Mbaru dismissed the application. The court held that under WIBA, where parties are satisfied with the Director's award, the ELRC has adopted a purposive approach allowing claims limited to enforcement of the award, while dissatisfaction lies only by appeal under section 52. The applicant's suit, framed as an ordinary claim for damages beyond the Director's award, could not properly be entertained by the ELRC; relying on Law Society of Kenya v Attorney General & COTU, the court noted that section 16 of WIBA bars a common-law damages action against an employer and channels claims through the Director with appellate redress to the ELRC. The court dismissed the application and directed that the parties be heard before the Chief Magistrate's Court at Nairobi, Milimani Commercial Court, in Civil Case No.845 of 2018. No costs order was recorded.

Key legal issues

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01

Whether the ELRC should accept transfer of a suit filed in the magistrates' court where the applicant seeks general and special damages beyond the Director's WIBA award

Holding

The application was dismissed; the ELRC is not the appropriate forum for claims framed beyond the Director's award, and transfer would not achieve the desired results

Reasoning

The Director had already assessed and awarded compensation of Kshs.1,720,000. The applicant's plaint claimed general damages, special damages and interest beyond the award. Under WIBA, a dissatisfied party may only appeal under section 52; a claim limited to enforcement of the award is permissible. The applicant filed an ordinary suit, not an enforcement claim or appeal, so transfer to the ELRC would commence a procedure not envisaged under WIBA or the court's Rules. Section 16 of WIBA bars a common-law damages action against the employer.

p. 2
02

The scope of section 16 of WIBA and access to courts

Holding

Section 16 does not limit access to courts but channels employee claims through the Director's investigation and award, with an appeal mechanism under section 52 to the ELRC

Reasoning

Applying the Supreme Court's decision in Law Society of Kenya v Attorney General & COTU, the court noted that section 16 read with sections 23 and 52 of WIBA provides legal redress to aggrieved parties from decisions of the Director, and the ELRC can determine all relevant matters arising from those decisions.

p. 2

Legal principles established

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  • Where parties are satisfied with the Director's award under WIBA, the Act has not established an enforcement mechanism, and the ELRC has adopted a purposive approach permitting a claim limited to enforcement of the Director's award; dissatisfaction with the award lies only by way of appeal under section 52
  • Section 16 of WIBA bars an employee's action for damages against an employer in respect of an occupational accident save under the Act

Court orders

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  1. 1.Application dated 14th April, 2021 dismissed
  2. 2.Parties to be heard before the Chief Magistrate's Court at Nairobi Milimani Commercial Court in Civil Case No.845 of 2018
Jurisdiction invoked
Sections 3, 12 and 20 of the Employment and Labour Relations Court Act and section 18(b) of the Civil Procedure Act (as cited in the application)

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, "Austin Oduor Odira v Kenya Sweets Limited & another [2021] KEELRC 1496 (KLR)", Case Analysis (2021). Cause CMELRC No.845 of 2018 (application dated 14th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1496/eng@2021-06-10

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