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ELRCPartially AllowedBungoma ELRC Appeal E004 of 2021 (arising from Butali SPMCC No 202 of 2017)· [2023] KEELRC 322 (KLR)

West Kenya Sugar Company Limited v Keiza (Employment and Labour Relations Appeal E009 of 2021) [2023] KEELRC 322 (KLR)

Employment and Labour Relations Court
9 February 2023
5,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenyan courts cannot hear work injury claims filed after 2008; those must go to the Director of Occupational Safety and Health Services under WIBA.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Bungoma (J. W. Keli, J) allowed an appeal by West Kenya Sugar Company Ltd against a ruling of Hon. Z J Nyakundi, Principal Magistrate, in Butali SPMCC No 202 of 2017, a work injury claim by Eliphas Kisohole Keiza. The magistrate had upheld a preliminary objection that her court lacked jurisdiction over post-WIBA work injury claims following the Supreme Court decision in Law Society of Kenya v Attorney General (Petition No 4 of 2019), downing her tools, but declined to strike out the suit on the view that the Supreme Court decision had a 'gap' regarding post-WIBA filings. On appeal, the ELRC held that the Supreme Court and Court of Appeal decisions recognised legitimate expectation only for litigation pending before courts prior to WIBA's entry into force (June 2, 2008) under the Workmen's Compensation Act or common law; all claims filed after commencement of WIBA lie before the Director of Occupational Safety and Health Services. The respondent's suit, filed in 2017, was therefore before the wrong forum. Relying on Owners of the Motor Vessel 'Lilian S' and Mini Bakeries, the court held that jurisdiction is everything and a suit filed in a court without jurisdiction must be struck out, not left pending. The trial court's ruling was set aside and substituted with an order upholding the preliminary objection and striking out the suit. Given conflicting decisions on the jurisdiction question, each party was ordered to bear their own costs in the appeal and the trial court. The judgment was directed to govern two related appeals (E010 and E011 of 2021).

Key legal issues

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01

Whether the magistrate misapprehended the law in holding she had no jurisdiction but no power to strike out the suit

Holding

The magistrate correctly downed tools for lack of jurisdiction over a post-WIBA work injury claim, but erred in law in failing to strike out the suit; once jurisdiction is absent the suit cannot stand and must be struck out.

Reasoning

The trial magistrate had found she had no jurisdiction following the Supreme Court decision in Law Society of Kenya v Attorney General, yet declined to strike out the suit, leaving the parties in limbo. The court, relying on Owners of the Motor Vessel Lilian 'S' and Mini Bakeries, held that without jurisdiction a court cannot make one more step, and a suit filed in a court without jurisdiction is incompetent and its only fate is to be struck off. The appeal was therefore merited.

p. 9
02

Scope of the legitimate expectation exception recognised in Law Society of Kenya v Attorney General (SC Pet No 4 of 2019)

Holding

The legitimate expectation recognised by the Court of Appeal and upheld by the Supreme Court applies only to litigation pending before courts prior to WIBA's entry into force (June 2, 2008), commenced under the Workmen's Compensation Act or common law; all post-WIBA claims fall under section 52 of WIBA before the Director.

Reasoning

The court traced the Court of Appeal judgment in Attorney General v Law Society of Kenya and the Supreme Court's paragraph 85, holding that legitimate expectation attaches only to pending cases filed pre-WIBA. The magistrate's view that the Supreme Court decision had a 'gap' for post-WIBA filings was misplaced, and the contrary holding in West Kenya Sugar v Tito Lucheli Tangale was inconsistent with the binding Supreme Court decision.

p. 7

Legal principles established

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  • Magistrates' courts lack jurisdiction to hear and determine work injury claims filed after the commencement of WIBA; such claims lie before the Director of Occupational Safety and Health Services, save for litigation pending before courts prior to WIBA's entry into force which is protected by legitimate expectation.
  • Jurisdiction is not a procedural technicality; without jurisdiction a court cannot take any further step.
  • A suit filed before a court without jurisdiction is incompetent and must be struck out, not transferred.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the trial court delivered on October 26, 2020 and the decree dated November 21, 2022 are set aside and substituted with an order that the preliminary objection dated March 18, 2020/2021 is upheld
  3. 3.The suit dated August 14, 2017 (Butali SPMCC No 202 of 2017) is struck out for want of jurisdiction
  4. 4.Each party to bear their own costs both in the appeal and in the trial magistrate's court
  5. 5.The judgment to apply in the determination of Bungoma ELRC appeals E011 of 2021 (West Kenya Sugar Co Ltd v Wycliffe Mbote Kipanga) and E010 of 2021 (West Kenya Sugar Co Ltd v Sostine Salamba Milimo)

Authorities

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Legislation

  • Work Injury Benefits Actsections 16, 22, 23(1), 52
  • Constitution of Kenyaarticles 48, 159, 159(2)(d)
  • Interpretation and General Provisions Actsection 23
  • Employment and Labour Relations Actsection 33
  • Civil Procedure RulesOrder VII rule 9

Cases cited (15)

  • Law Society of Kenya v Attorney General & Central Organisation of Trade Union (K)
    Supreme Court Petition No 4 of 2019; [2019] eKLR
  • Attorney General v Law Society of Kenya & Another
    [2017] eKLR; Court of Appeal Appeal No 133 of 2011
  • Heritage Insurance Company Limited v David Fikiri Joshua & another
    Mombasa ELRC Civil Appeal No 21 of 2019; 2021 eKLR
  • Perfect Sean Limited v Harrison Kahindi Said
    Mombasa ELRC Civil Appeal No 18 of 2020
  • West Kenya Sugar v Tito Luchele Tangale
    ELRC Kisumu Appeal No 4 of 2019; (2021) eKLR
  • Kiplagat Korir v Dennis Kipngeno Mutai
    (2006) eKLR
  • Juma Nyamawi Ndungo & 5 others v Attorney General; Mombasa Law Society (interested party)
    (2019) eKLR
  • Selle & another v Associated Motor Boat Co Ltd & others
    (1948) EA 123
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    1989 eKLR
  • Mini Bakeries (NRB) Limited v Levi Karuz Omedo
    (2022) eKLR (judgment prints 2002)
  • West Kenya Sugar Co Ltd v Shirandula
    Employment and labour relations appeal E005 of 2021; [2022] KEELRC 13284 (KLR)
  • West Kenya Sugar Co Ltd v Libuyi
    Appeal E013 of 2021; [2022] KEELRC 13244 (KLR)
  • West Kenya Sugar Co Ltd v Sakasa
    Employment and labour relations appeal E006 of 2021; [2022] KEELRC 13187 (KLR)
  • West Kenya Sugar Co Ltd v Edward Alphew Ambesta
    Bungoma ELRC Appeal No E004 of 2021
  • Anzala Ronald Lidunga v West Kenya Sugar Limited
    Butali SPMCC Suit No 160 of 2018
On appeal from
Principal Magistrate's Court, Butali
Butali SPMCC No 202 of 2017
Jurisdiction invoked
Appeal from the subordinate court under the Employment and Labour Relations Court jurisdiction over work injury claims under the Work Injury Benefits Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "West Kenya Sugar Company Limited v Keiza (Employment and Labour Relations Appeal E009 of 2021) [2023] KEELRC 322 (KLR)", Case Analysis (2023). Bungoma ELRC Appeal E004 of 2021 (arising from Butali SPMCC No 202 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/322/eng@2023-02-09

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