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ELRCStruck OutCause No 668 of 2017· [2022] KEELRC 345 (KLR)

Hesbon Machano Makhoha v Tarmal Wire Products Ltd [2022] KEELRC 345 (KLR)

Employment and Labour Relations Court
24 March 2022
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court struck out a work injury claim, confirming WIBA routes workplace injury compensation through the government, not courts.

What this practically means

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Executive summary

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This was a work injury claim instituted by the Claimant on 17th August 2017, seeking general damages, special damages, costs and interest for an injury allegedly sustained at work on 11th August 2015. The Respondent filed a preliminary objection contending that the Court lacked jurisdiction because, under Sections 16 and 23(1) of the Work Injury Benefits Act 2007 (WIBA), compensation is the preserve of the Directorate of Occupational Safety and Health Services. The preliminary objection was never prosecuted. Following inactivity since 15th July 2020, the Deputy Registrar issued a notice to show cause why the suit should not be dismissed for want of prosecution under Rule 16 of the ELRC (Procedure) Rules 2016. The Claimant's advocate deponed that inaction resulted from stays arising from litigation over WIBA's constitutionality, culminating in the Supreme Court's decision in Law Society of Kenya v Attorney General [2019], and invoked legitimate expectation based on the High Court's earlier declaration that key WIBA provisions were unconstitutional. The Court held that jurisdiction is everything; that the suit, filed after WIBA's enactment, was filed in a court without jurisdiction by dint of Section 16 and was a nullity; and that case law cannot supersede statute. Rule 16 presupposes a valid suit. The Court struck down the suit with no orders as to costs, permitted the Claimant to lodge his claim with the Director of Occupational Safety and Health Services, and ordered the court file closed.

Key legal issues

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01

Jurisdiction of the ELRC over a work injury claim under WIBA

Holding

The suit, filed after the enactment of WIBA, was filed in a court without jurisdiction by dint of Section 16 of the Act and is a nullity

Reasoning

Section 16 of WIBA ousts court actions for damages for occupational accidents, vesting compensation exclusively under the Act. The Claimant's reliance on the High Court decision in Petition No. 185 of 2008 (later overturned on appeal) and on legitimate expectation cannot sustain jurisdiction, since judge-made law cannot supersede statute. The suit was therefore a nullity at inception and had to be struck down.

p. 2
02

Dismissal for want of prosecution under Rule 16

Holding

Rule 16 presupposes the existence of a valid suit; since this suit was a nullity, it could not stand and was struck down

Reasoning

The suit lay dormant from 15th July 2020. On the notice to show cause, the Claimant explained the inaction by reliance on conflicting interpretations of the Supreme Court's decision in Law Society of Kenya v Attorney General. The Court held the failure to prosecute stemmed from the suit having been filed in a court without jurisdiction, and Rule 16 envisages a valid suit.

p. 2

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and the court must down tools
  • A court's jurisdiction flows only from the Constitution or legislation and cannot be self-conferred
  • Case law cannot supersede or replace statute
  • Section 16 of WIBA bars an employee's court action for damages for occupational accidents, confining compensation to the Act's provisions

Court orders

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  1. 1.The Claimant's suit is struck down with no orders as to costs
  2. 2.The Claimant may, if he so wishes, forthwith lodge his claim with the Director of Occupational Safety and Health Services in accordance with the provisions of the Work Injury Benefits Act (WIBA)
  3. 3.The Court file is ordered closed

Authorities

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Legislation

  • Work Injury Benefits ActSection 16
  • Work Injury Benefits ActSection 23(1)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 16
  • Constitution of KenyaGeneral reference (as cited in affidavit re Petition No. 185 of 2008)

Cases cited (7)

  • OWNERS OF MOTOR VEHICLE "LILIAN S" –VS- CALTEX OIL [KENYA] LIMITED
    Civil Appeal No. 50 of 1989
  • JOSEPH MUTHEE KAMAU & ANOTHER –VS- DAVID MWANGI GICHURE & ANOTHER
    [2013] eKLR
  • KAGENY-VS- MUSIRAMBO
    [1968] E.A 43
  • SAMUEL KAMAU MACHARIA –VS- KCB & 2 OTHERS
    Civil Application No. 2 of 2011
  • LAW SOCIETY OF KENYA VS- ATTORNEY GENERAL & ANOTHER
    [2019] eKLR
  • MANUCHAR KENYA LIMITED –VS- DENNIS ODHIAMBO OLWETE
    [2020] eKLR
  • WEST SUGAR CO. LTD –VS- TITO LUCHELI TINGALE
    Civil Appeal No. 4 of 2019 – Kisumu
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; issue of jurisdiction under Section 16 of the Work Injury Benefits Act 2007

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, "Hesbon Machano Makhoha v Tarmal Wire Products Ltd [2022] KEELRC 345 (KLR)", Case Analysis (2022). Cause No 668 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/345/eng@2022-03-24

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