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ELRCDismissedNot stated in the excerpt· [2021] KEELRC 1598 (KLR)

Mulaku Chekata Luke v Timesales Limited [2021] KEELRC 1598 (KLR)

Employment and Labour Relations Court
27 May 2021
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Employment and Labour Relations Court ruling by Hellen Wasilwa, J, decided a preliminary objection dated 15th January 2021 in a pending work injury claim. The objector argued that under sections 16, 23(1) and 52 of the Work Injury Benefits Act, as authoritatively construed by the Court of Appeal in Civil Appeal 133 of 2011 and the Supreme Court in Petition No. 4 of 2019 (Law Society of Kenya v Attorney General), claims for work-related injuries must first be lodged with the Director of Occupational Safety and Health Services, and that the suit was therefore an abuse of process to be struck out with costs. The plaintiff opposed, showing that the suit was filed on 22nd March 2017, when the operative law was the High Court Petition 185 of 2008 decision declaring the WIBA provisions unconstitutional; the Court of Appeal reversed that only on 17th November 2017 and the Supreme Court on 3rd December 2019. Relying on the Supreme Court's recognition of claimants' legitimate expectations for pending cases, and invoking the Oxygen Principles and section 18(1)(a) of the Civil Procedure Act, the plaintiff alternatively sought a transfer to the Director. Holding that the claimant had a legitimate expectation that the claim would be concluded under the regime in which it was commenced, the court found the objection had no merit, dismissed it, allowed the claim to continue before the court, and ordered costs in the cause.

Key legal issues

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01

Jurisdiction over work injury claims under WIBA

Holding

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.

Reasoning

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.

p. 3
02

Abuse of court process

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 15th January, 2021 is dismissed
  2. 2.The claim is allowed to continue and be concluded before this court
  3. 3.Costs in the cause

Authorities

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Legislation

  • Work Injury Benefits Actsection 16
  • Work Injury Benefits Actsection 52
  • Work Injury Benefits Actsection 23(1)
  • Civil Procedure Act (Cap 21)section 18(1)(a)
  • Civil Procedure Actsections 1A and 3A

Cases cited (9)

  • Attorney General –vs- Law Society of Kenya & Another
    Civil Appeal No. 133 of 2011
  • Law Society of Kenya –VS- Attorney General and another
    [2019] eKLR (Supreme Court Petition No. 4 of 2019)
  • Sammy Ndungu Waity –vs- I.E.B.C & 3 Others
    [2019] eKLR
  • Longonot horticulture limited –vs- Jamas wakaba maina
    [2019] eKLR
  • Saidi Mohamed –vs- diamond industries ltd
    [2018] eKLR
  • Cyrus Ombuna Machina –versus- Safaricom Limited
    [2020] eKLR
  • Muchanga investment limited –versus- safaris unlimited (Africa) ltd & 2 others
    [2009] KLR 229
  • Premchand Raichand ltd- versus- quarry services of East Africa Ltd
    [1972] EA 162
  • High Court Petition Number 185 of 2008
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

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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, "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.