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ELRCPartially AllowedELRC Appeal (Malindi) – memorandum of appeal filed 29.10.2019 arising from Malindi CMCC No. 87 of 2015· [2021] KEELRC 1634 (KLR)

Heritage Insurance Company Limited v David Fikiri Joshua & another [2021] KEELRC 1634 (KLR)

Employment and Labour Relations Court
4 June 2021
BOByram Ongaya
4,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that work injury claims after June 2008 must go through WIBA, not ordinary lawsuits, so the worker's case was struck out.

What this practically means

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Executive summary

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This is an appeal to the Employment and Labour Relations Court at Mombasa (Ongaya J) against a ruling of the Chief Magistrate's Court at Malindi delivered on 14.12.2018 dismissing the insurer-appellant's preliminary objection that the trial court lacked jurisdiction under section 16 of the Work Injury Benefits Act (WIBA) to hear a work injury claim. The 1st respondent, an employee of the 2nd respondent, sued for general and special damages for injuries sustained on 23.01.2014 when a coral stone fell on his hand; the 2nd respondent sought to enjoin its insurer (the appellant) as third party under a workman's compensation policy. The magistrate stayed the suit pending the Supreme Court's decision in the Law Society of Kenya litigation but dismissed the preliminary objection. On appeal, the Court held that the Court of Appeal decision in Attorney General v Law Society of Kenya, as affirmed by the Supreme Court on 03.12.2019, upheld the constitutionality of sections 4, 16 and related provisions of WIBA, and that these judicial decisions applied retrospectively to WIBA's commencement on 02.06.2008. Only suits already filed before WIBA's commencement enjoyed legitimate expectation protection; the 1st respondent's 2015 suit did not. The earlier High Court decision of Ojwang J was treated as effectively varied by the affirmed appellate decision. The appeal was allowed, the magistrate's ruling set aside, the 1st respondent's plaint struck out, with each party bearing own costs of the suit and the appeal.

Key legal issues

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01

Retrospective effect of decisions upholding the constitutionality of WIBA

Holding

The Court of Appeal decision as affirmed by the Supreme Court applied retrospectively to the commencement of WIBA on 02.06.2008, confirming section 16 and related sections constitutional at all material times

Reasoning

Relying on A v Governor of Arbour Hill Prison and Kibos Distillers, the Court held civil judicial decisions are retroactive. Since the 1st respondent's injury occurred on 23.01.2014, long after WIBA commenced, and no suit was pending at commencement, his claim fell under WIBA. The converse of the nullity principle for unconstitutional statutes is that a statute declared constitutional binds retrospectively from commencement.

p. 4
02

Scope of legitimate expectation protection for pending work injury claims

Holding

Legitimate expectation protects only suits already filed in court on WIBA's commencement date; the 1st respondent's 2015 suit is not protected

Reasoning

The Court read the Court of Appeal and Supreme Court decisions as protecting cases pending at WIBA's commencement, applying section 58(2) which deems pre-commencement claims lodged under the Act. All other work injury claims must be processed under WIBA, with the Director adjudicating and the ELRC exercising appellate jurisdiction only.

p. 4
03

Effect of the earlier High Court decision by Ojwang J declaring WIBA provisions unconstitutional

Holding

That decision was set aside on appeal and, by the law of the case doctrine and stare decisis, the affirmed Court of Appeal decision prevails; the High Court decision can no longer be relied upon

Reasoning

Though Ojwang J's decision was arguably never stayed, the appeal against it succeeded and the Supreme Court affirmed the Court of Appeal. The prevailing judge-made law became the affirmed appellate decision, which varied the High Court decision and ousted reliance on it to justify suits in Magistrates' Courts.

p. 5

Legal principles established

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  • Judicial decisions in civil cases apply retrospectively; a statute declared constitutional must be good law retrospectively from the date of its commencement
  • Only litigants who filed their cases in court before WIBA's commencement on 02.06.2008 enjoy the legitimate expectation that their suits will be concluded in court; later claims must follow the WIBA procedure
  • The law of the case doctrine and stare decisis bind all courts to the Court of Appeal decision as affirmed by the Supreme Court

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and orders given on 14.12.2018 subject of this appeal are hereby set aside and the 1st respondent's plaint is struck out
  3. 3.Each party to bear own costs of the suit and the appeal

Authorities

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Legislation

  • Work Injury Benefits Act, 2007 (WIBA)sections 4, 16, 21(1), 23(1), 25(1)(3), 52(1)(2), 58, 58(2)
  • Workmen's Compensation Act (Cap 236)repealed
  • Constitution of KenyaArticle 162(2)
  • Employment Actsection 87
  • Employment and Labour Relations Court Actsection 12
  • Interpretation and General Provisions Actsection 23
  • Magistrates' Court Actjurisdiction over labour matters (per Ogola J cited)
  • Labour Institutions Act, 2007offences (Gazette Notice No. 9243 of 27.07.2011)
  • Occupational Safety and Health Act, 2007offences (Gazette Notice No. 9243 of 27.07.2011)
  • Labour Relations Act, 2007offences (Gazette Notice No. 9243 of 27.07.2011)

Cases cited (9)

  • Attorney General –Versus- Law Society of Kenya & Another
    Nairobi Civil Appeal No. 133 of 2011 [2017] eKLR
  • Law Society of Kenya –Versus- Attorney General & Another
    [2019] eKLR
  • Manuchar Kenya Limited –Versus- Dennis Odhiambo Olwete
    [2020] eKLR
  • Longonot Horticulture Limited –Versus- James Wakaba Maina
    [2019] eKLR
  • Saidi Mohamed –Versus- Diamond Industries Ltd
    [2018] eKLR
  • A –Versus- The Governor of Arbour Hill Prison
    [2006] IESC 45 [2006] 4 IR 88
  • Kibos Distillers Limited & 4 Others –Versus- Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Kisumu West Kenya Sugar Co. Ltd –Versus- Titi Lucheli Tangale
    ELRC Appeal No. 4 of 2019
  • Juma Nyamawi Ndunge & 5 Others –Versus- Attorney General, Mombasa Law Society (Interested Party)
    [2019] eKLR
On appeal from
Chief Magistrate's Court at Malindi
Malindi CMCC No. 87 of 2015
Jurisdiction invoked
Appeal under the Employment and Labour Relations Court Act from the Magistrates' Court ruling dismissing a preliminary objection on jurisdiction under section 16 of the Work Injury Benefits Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Heritage Insurance Company Limited v David Fikiri Joshua & another [2021] KEELRC 1634 (KLR)", Case Analysis (2021). ELRC Appeal (Malindi) – memorandum of appeal filed 29.10.2019 arising from Malindi CMCC No. 87 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1634/eng@2021-06-04

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