Linet Osebe Momanyi & another (suing as personal representatives & legal administrators of the estate of Douglas Onsario Mageto) v Kisii County Government [2021] KEELRC 1694 (KLR)
The bottom line
#Kenya's Employment Court confirmed that work injury claims filed between May 2008 and December 2019 were validly lodged in court and must be heard to conclusion.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial Magistrate denied the Appellants a fair hearing by determining jurisdiction from the Respondent's submissions
No denial of fair hearing; the jurisdiction question was raised by the Respondent in submissions, not suo moto, and the Appellants had sufficient time to file supplementary submissions
The Respondent did not plead lack of jurisdiction in its defence or witness statements but raised it in submissions filed on 13 January 2020 and served on 23 January 2020; judgment was delivered on 8 May 2020. The Appellants therefore had more than sufficient time to seek leave to file supplementary submissions, and the Magistrate committed no error in making a determinative finding on jurisdiction.
What was the subsisting law when the Appellants lodged their claim on 20 September 2018
The subsisting law was the High Court's order staying section 16 of the Work Injury Benefits Act, so the claim was validly lodged before the Magistrates Court
Relying on its earlier decision in West Kenya Sugar Co Ltd v Tito Lucheli Tangale, the Court traced the chronology: the High Court stayed section 16 on 22 May 2008, declared it inconsistent with the Constitution on 4 March 2009, and the Court of Appeal upheld the declaration on 17 November 2017 without staying it. Judge-declared law remained valid until the Supreme Court's determination on 3 December 2019, so a suit lodged on 20 September 2018 was within the courts' jurisdiction.
Access to justice and legitimate expectation
Sending claimants who lodged claims on the strength of judge-declared law away from the seat of justice would be antithetical to the right of access to justice and would defeat their legitimate expectation
Article 48 recognises access to justice, and such claimants would face an insurmountable plea of limitation under section 26 of the Work Injury Benefits Act for reasons beyond their control. Having lodged claims between 22 May 2008 and 3 December 2019 on the assurance of judge-declared law, they are entitled to assert legitimate expectation that the claims be heard to a conclusion where lodged.
Legal principles established
#- Until set aside or vacated, a court order, including judge-made or judge-declared law, is valid and litigants may order their lives on the faith of it
- Claims lodged with the courts between 22 May 2008 and 3 December 2019 under judge-declared law were validly within the jurisdiction of the courts, absent stay orders
- Litigants who filed work-injury claims between 22 May 2008 and 3 December 2019 are entitled to assert legitimate expectation that their claims be heard to conclusion where lodged
- Where a court raises the jurisdictional question suo moto, parties must be accorded an opportunity to be heard
Court orders
#- 1.The Appeal is allowed
- 2.The judgment of the Magistrates Court delivered on 8 May 2020 is set aside
- 3.The suit before the Magistrates Court be heard afresh to a logical conclusion
- 4.Each party to bear its own costs of the Appeal
- On appeal from
- Magistrates Court
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Magistrates Court in employment/work injury matters (Work Injury Benefits Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linet Osebe Momanyi & another (suing as personal representatives & legal administrators of the estate of Douglas Onsario Mageto) v Kisii County Government [2021] KEELRC 1694 (KLR)", Case Analysis (2021). Memorandum of Appeal filed 27 May 2020 (ELRC Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1694/eng@2021-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.