Perfect Scan Limited v Harrison Kahindi Said [2021] KEELRC 1638 (KLR)
The bottom line
#The Employment Court struck out a work injury appeal because no written law gave it jurisdiction, reinforcing that Kenyan courts cannot act without statutory authority.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Magistrate's Court had the necessary jurisdiction to hear and determine the suit
- 2.Whether this Court enjoys the necessary appellate jurisdiction to hear and determine the appeal
- 3.Whether the appellant is estopped from raising the issue of jurisdiction for the first time on appeal
- 4.Whether the retrospective declaration of constitutionality of section 16 of WIBA, and the law-of-the-case doctrine, affect the fate of the judgment appealed against
Key legal issues
#Whether the Court had appellate jurisdiction over the work injury appeal
The Court found it lacked jurisdiction because WIBA's section 52 confers appellate jurisdiction in injury claims but no written law was cited conferring jurisdiction over this appeal as filed
The Court found section 16 of WIBA applied given the Court of Appeal decision as affirmed by the Supreme Court, so the Magistrate's Court lacked jurisdiction over the suit. Section 52 of WIBA confers appellate (not original) jurisdiction on the ELRC, but no written law conferred jurisdiction over the present appeal as filed. Lacking jurisdiction, the Court downed its tools.
Whether belated raising of jurisdiction was barred by estoppel or pleading
No - jurisdiction is a preliminary issue the Court must address even of its own motion
The Court held that although jurisdiction was not disputed before the Magistrate or in the memorandum of appeal, the issue goes to the Court's very foundation to act. Parties were given opportunity to be heard on it, so no prejudice arose. The Court may raise jurisdiction suo motu and must decide it before embarking on the merits.
Effect of the final declaration of constitutionality of WIBA on the impugned judgment
The retrospective and binding position was that section 16 of WIBA was constitutional from commencement, but the Court declined to determine the fate of the already-delivered judgment as parties had not submitted on it
The Court held that under the law-of-the-case doctrine the Court of Appeal decision, as affirmed by the Supreme Court, was the final binding judge-made law. The High Court's earlier unconstitutionality ruling might have created a legitimate expectation, but jurisdiction is not conferred by judge-made law. The Court let the fate of the judgment rest as parties had not addressed it.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction must down its tools and anything done without jurisdiction is a nullity.
- Jurisdiction is conferred only by the Constitution or statute, not by judge-made law.
- Where a statute challenged as unconstitutional is instead declared constitutional, that declaration operates retrospectively from the statute's commencement.
- A party invoking a court's appellate jurisdiction must establish the constitutional or statutory basis for it.
Court orders
#- 1.A declaration that the Court lacks jurisdiction to entertain the appeal on merits upon the grounds stated in the memorandum of appeal
- 2.The appeal is struck out
- 3.Each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (transferred appeal; originally Magistrate's Court)
- null
- Jurisdiction invoked
- Section 12(1) of the Employment and Labour Relations Court Act, 2011 read with Article 162(2) of the Constitution and section 52 of the Work Injury Benefits Act, 2007
Relief refused
#The appeal to be allowed and the Magistrate's judgment set aside or varied as prayed in the memorandum of appeal
The Court found it lacked appellate jurisdiction over the work injury claim and declined to consider the merits
The respondent's estoppel argument preventing the appellant from raising jurisdiction belatedly
Jurisdiction is a threshold issue the Court must consider of its own motion even if not raised by parties
Costs
Each party to bear own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
jurisdiction is everything and once it is established that the Court lacks jurisdiction, then the Court or other decision maker must down its tools. That which is done without jurisdiction is a nullity.
jurisdiction is only conferred to Courts by the Constitution or relevant statute and not judge-made law
The Court lacks jurisdiction to entertain the appeal on merits upon the grounds stated in the memorandum of appeal.
The appeal is hereby struck out.
Each party to bear own costs of the appeal.
Issues in the judgment
#The judgment records an inconsistency in the date of the trial court's judgment: the memorandum of appeal stated 18.10.2016 while the record shows 19.10.2016
The actual case number and party names are not stated in the judgment; the parties are referred to only as 'the appellant' and 'the respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Perfect Scan Limited v Harrison Kahindi Said [2021] KEELRC 1638 (KLR)", Case Analysis (2021). Appeal filed 17.11.2016 (memorandum of appeal), record filed 29.11.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1638/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.