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ELRCDismissedELRC Motion (Mombasa), Notice of Motion dated 31st August 2020· [2021] KEELRC 1762 (KLR)

Patrick Maelo Tuluka v Coast Security Limited & another [2021] KEELRC 1762 (KLR)

Employment and Labour Relations Court
6 May 2021
LNLINNET NDOLO
724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled it cannot take over old workplace injury cases filed before 2007, leaving them with the Magistrate's Court where they started.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo J, delivered 6 May 2021) determined the Applicant's Notice of Motion dated 31st August 2020 seeking transfer of Mombasa SRMCC No 3055 of 2007, a work injury suit, from the Mombasa Senior Resident Magistrate's Court to the ELRC. The Applicant argued the Magistrate's Court lacked jurisdiction over the matter. The 1st Respondent opposed, contending the ELRC lacked jurisdiction over the Motion, relying on the Court of Appeal decision in Attorney General v Law Society of Kenya and the Supreme Court's affirming decision in Law Society of Kenya v Attorney General, which set aside the earlier High Court decision declaring sections of the Work Injury Benefits Act unconstitutional. The court noted that Section 16 of WIBA, as restored, ousts initial jurisdiction in work injury claims from the courts and vests it in the Director of Occupational Safety and Health, leaving the ELRC with appellate jurisdiction only. Addressing claims filed before WIBA's enactment, the court relied on the Supreme Court's legitimate expectation reasoning to hold that such pre-WIBA claims could be concluded by the courts in which they had been filed; the cause of action here arose on 20th April 2007, before WIBA. Holding that the ELRC exercises only appellate jurisdiction over WIBA matters and lacks original jurisdiction, the court disallowed the Motion and ordered each party to bear their own costs.

Key legal issues

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01

Whether the ELRC can take over a pre-WIBA work injury claim pending before a Magistrate's Court

Holding

The application for transfer fails; the ELRC has no original jurisdiction over WIBA matters, and the trial Magistrate's Court can conclude the pre-WIBA claim filed before it.

Reasoning

Section 16 of WIBA, restored after the Court of Appeal and Supreme Court decisions in the LSK cases, ousts initial court jurisdiction and vests it in the Director of Occupational Safety and Health, leaving the ELRC with appellate jurisdiction only. However, the Supreme Court's pronouncement at paragraph 85 preserved pending pre-WIBA suits on the basis of legitimate expectation, so claims filed before WIBA, such as the 2007 cause of action here, may be concluded by the trial court.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court exercises only appellate, not original, jurisdiction over work injury claims under WIBA
  • Work injury claims filed in court before the enactment of WIBA may be concluded by the courts in which they were filed, per the Supreme Court's legitimate expectation reasoning

Court orders

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  1. 1.The Applicant's Notice of Motion dated 31st August 2020 seeking transfer of Mombasa SRMCC No 3055 of 2007 from the Mombasa Senior Resident Magistrate's Court to the ELRC is disallowed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Work Injury Benefits Act (WIBA)Section 16
  • Work Injury Benefits Act (WIBA)Section 52

Cases cited (2)

  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over work injury claims under the Work Injury Benefits Act; the court held it exercises only appellate jurisdiction over WIBA matters

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, "Patrick Maelo Tuluka v Coast Security Limited & another [2021] KEELRC 1762 (KLR)", Case Analysis (2021). ELRC Motion (Mombasa), Notice of Motion dated 31st August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1762/eng@2021-05-06

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