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ELRCStruck OutNot stated in the judgment extract· [2021] KEELRC 1508 (KLR)

Jonathan Njuguna Kimani & another v Safaricom Kenya PLC Limited [2021] KEELRC 1508 (KLR)

Employment and Labour Relations Court
21 April 2021
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Respondent filed a notice of preliminary objection dated 14th October 2020 seeking the striking out of the Claimants' suit dated 15th September 2020 on the ground that the claims relate to and arise from work injuries, and that by virtue of Section 16 of the Work Injuries Benefits Act, 2007 the Employment and Labour Relations Court lacks jurisdiction to determine them at the primary stage. The Claimants did not file a response; the objection was canvassed by written submissions. The Respondent relied on the mutual separation agreements signed by the Claimants and on authorities including Law Society of Kenya v Attorney General, where the Supreme Court held that WIBA establishes a statutory dispute-resolution mechanism beginning with the Director. The Claimants countered that their claim's substratum was unlawful and unfair termination, discrimination and unfair labour practices, not compensation for injury, relying on section 49 of the Employment Act. The court held that the objection met the Mukisa Biscuit threshold as a pure point of law on jurisdiction, and that jurisdiction is determined on the pleadings. On a careful perusal of the Memorandum of Claim, the court found the claim anchored in diseases contracted during employment, bringing it within Section 16 of WIBA. The suit was struck out with each party bearing its own costs.

Key legal issues

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01

Whether the preliminary objection is properly founded on a pure point of law

Holding

It is, because it contests jurisdiction as conferred by Section 16 of WIBA

Reasoning

The court applied the Mukisa Biscuit test and found the objection raises a pure question of law - the jurisdiction of the Court - without requiring the ascertainment of facts from evidence.

p. 2
02

Whether the ELRC has jurisdiction over the Claimants' suit

Holding

No; the claim is anchored in work injuries/diseases and Section 16 of WIBA bars a direct action against the employer in this Court at the primary stage

Reasoning

Relying on Law Society of Kenya v Attorney General, the court held that WIBA creates a statutory dispute-resolution mechanism beginning with the Director, and that claims for damages arising from occupational accident or disease must follow that route before resort to the court. Though the Claimants framed their claim as unfair termination and unfair labour practices, the claim's substratum was the occupational diseases.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case
  • Where the pleadings establish that the claim is one for recovery of damages in respect of an occupational accident or disease, Section 16 of WIBA ousts the Court's jurisdiction at the primary stage

Court orders

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  1. 1.The suit is struck out
  2. 2.Each party is to bear their own costs

Authorities

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Legislation

  • Work Injuries Benefits ActSection 16
  • Employment ActSection 49

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Law Society of Kenya v Attorney General & Another
    [2019] eKLR
  • Sammy Ndungu Waity Vs I.E.B.C. and 3 others
    [2019] eKLR
  • Alfred Kiprono Kirui v James Finlay (K) Limited
    [2020] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Allfayo Jagona Imbuya v Board of Management Ivugwi Secondary School
    [2018] eKLR
  • Mass Investments Limited v Stephen Masila Kyalo
    [2018] eKLR
  • Joyce Cherop Kaspandoy & 609 Others v Kenya Power and Lighting Company
    [2019] eKLR
  • Vuyile Jackson Gcaba v Minister for Safety and Security First & Others
    Case CCT 64/08 [2009] ZACC 26
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court considered vis-à-vis Section 16 of the Work Injuries Benefits Act, 2007

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, "Jonathan Njuguna Kimani & another v Safaricom Kenya PLC Limited [2021] KEELRC 1508 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1508/eng@2021-04-21

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