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ELRCStruck OutELRC Appeal (Mombasa) arising from High Court appeal transferred by order of 01.10.2020· [2022] KEELRC 776 (KLR)

Alphas Alex Joy Shapaya v Alba Petroleum Limited [2022] KEELRC 776 (KLR)

Employment and Labour Relations Court
18 February 2022
BOByram Ongaya
2,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The appellant was injured in the course of employment with the respondent and sued for general damages in RMCC No. 2077 of 2012 at Mombasa, relying on the High Court decision of Ojwang J in Law Society of Kenya v Attorney General which had declared section 16 of the Work Injury Benefits Act, 2007 unconstitutional. The magistrate dismissed the suit on 27.08.2014 for want of proof, and the appellant appealed to the High Court. On 01.10.2020 Chepkwony J declined jurisdiction and transferred the appeal to the ELRC at Mombasa, where the parties by consent directed that jurisdiction be addressed through supplementary submissions. The respondent filed no submissions; the appellant relied on the historical unconstitutionality declaration. The Court followed its own decision in Perfect Scan Limited v Harrison Kahindi Said, reiterating that jurisdiction is everything and must be ascertained sua sponte; that a declaration of constitutionality is retrospective from the statute's commencement; and that jurisdiction is conferred only by the Constitution or written law, not judge-made law. Since the Court of Appeal's decision affirming the constitutionality of section 16 of WIBA was upheld by the Supreme Court, WIBA applied to the claim, the magistrate's court lacked jurisdiction, and only section 52 of WIBA confers appellate jurisdiction in injury claims. The appellant had not established any written law conferring ELRC appellate jurisdiction over this appeal. The appeal was struck out preliminarily, with each party bearing its own costs, the Court noting the unique circumstances and the absence of respondent submissions.

Key legal issues

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01

Whether the ELRC has appellate jurisdiction over the appeal in an injury claim under WIBA

Holding

The Court lacks jurisdiction; only section 52 of WIBA confers appellate jurisdiction in injury claims, and the appeal as filed was not such an appeal from the Director.

Reasoning

Section 12(1) of the ELRC Act read with Article 162(2) confers exclusive original and appellate jurisdiction on employment disputes, but WIBA channelled injury claims through the Director with appeals under section 52. Since section 16 of WIBA was held constitutional by the Court of Appeal and the Supreme Court, the trial court had no jurisdiction over the suit, and the appellant did not establish any written law conferring ELRC appellate jurisdiction over this appeal from a magistrate's court decision.

p. 3
02

Effect of the final case law on the constitutionality of section 16 of WIBA

Holding

The Court of Appeal decision affirmed by the Supreme Court is the law of the case: section 16 of WIBA was constitutional from WIBA's commencement, retrospectively.

Reasoning

The Court adopted its earlier reasoning in Perfect Scan Limited v Harrison Kahindi Said, holding that a declaration of constitutionality is retrospective from commencement; only suits filed before WIBA came into operation were saved. The appellant's suit filed in 2012 was not so saved, and judge-made law cannot confer jurisdiction.

p. 2

Legal principles established

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  • A court must ascertain and decide its own jurisdiction before addressing the merits; without jurisdiction it must down its tools.
  • Appellate jurisdiction must be grounded in the Constitution or a written law, not in judge-made law.
  • A declaration that a statute is constitutional operates retrospectively from the statute's commencement.

Court orders

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  1. 1.The appeal is struck out
  2. 2.Each party to bear own costs of the proceedings
On appeal from
Magistrate's Court (RMCC No. 2077 of 2012, Mombasa)
RMCC No. 2077 of 2012
Jurisdiction invoked
Section 52 of the Work Injury Benefits Act, 2007 read with section 12(1) of the Employment and Labour Relations Court Act, 2011 and Article 162(2) of the Constitution

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, "Alphas Alex Joy Shapaya v Alba Petroleum Limited [2022] KEELRC 776 (KLR)", Case Analysis (2022). ELRC Appeal (Mombasa) arising from High Court appeal transferred by order of 01.10.2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/776/eng@2022-02-18

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