Mulaku Chekata Luke v Timesales Limited [2021] KEELRC 1598 (KLR)
The bottom line
#A Kenyan court ruled that work injury lawsuits filed before the law changed in 2019 can continue in court — employers can't have them struck out.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over work injury claims under WIBA
Although WIBA vests original jurisdiction in the Director of Occupational Safety and Health Services, the preliminary objection failed because this suit was filed on 22nd March 2017, before the Court of Appeal (17/11/2017) and Supreme Court (3/12/2019) decisions restored that position.
The court traced the litigation history: High Court Petition 185 of 2008 declared sections 16 and 52 of WIBA unconstitutional; the Court of Appeal set that aside on 17th November 2017 and the Supreme Court upheld the Court of Appeal on 3rd December 2019. Because the claim was instituted on 22nd March 2017, when the operative law was the High Court petition decision, the claimant had a legitimate expectation the claim would be concluded under the judicial regime invoked. Accordingly the objection was dismissed.
Abuse of court process
The suit was not an abuse of process; the plaintiff acted on legitimate expectation and the defendant only raised the objection after the Supreme Court decision.
The plaintiff contended it filed suit when the operative law was the High Court Petition 185 of 2008 decision, which was overturned only after filing, and relied on Muchanga Investments on the definition of abuse of process. The court accepted that the claimant's reliance on the then-applicable decision amounted to legitimate expectation and did not constitute abuse.
Legal principles established
#- A claimant whose suit was filed while the operative law allowed the claim in court has a legitimate expectation that the claim will be concluded under the regime under which it was commenced
Court orders
#- 1.The preliminary objection dated 15th January, 2021 is dismissed
- 2.The claim is allowed to continue and be concluded before this court
- 3.Costs in the cause
- Jurisdiction invoked
- Jurisdiction under the Work Injury Benefits Act (ss. 16, 23(1), 52) and the court's transfer power under section 18(1)(a) of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulaku Chekata Luke v Timesales Limited [2021] KEELRC 1598 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1598/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.