West Kenya Sugar Company Limited v Lichinga (Employment and Labour Relations Appeal E023 of 2021) [2023] KEELRC 597 (KLR)
The bottom line
#Kenya's Employment Court confirmed that workplace injury claims filed after WIBA must go through the Director of Occupational Safety, not magistrates' courts, so wrongly filed suits get struck out.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of magistrates' courts over work injury claims filed after WIBA's commencement
Magistrates' courts lack jurisdiction over work injury claims filed after the WIBA effective date; such claims must first go to the Director of Occupational Safety and Health Services under WIBA, save for litigation pending before courts before WIBA's entry into force which is protected by legitimate expectation
Applying the binding Supreme Court decision in Law Society of Kenya v Attorney General, the court held the legitimate expectation recognised by the superior courts extended only to litigation pending at WIBA's commencement. The respondent's suit filed in 2017 was post-WIBA and therefore filed in the wrong forum. The magistrate correctly held she lacked jurisdiction but erred in holding she had no power to strike out the suit.
Whether a magistrate who declines jurisdiction can nevertheless decline to strike out the suit
A court without jurisdiction cannot take any further step; the only fate of such a suit is to be struck off
Relying on Owners of the Motor Vessel 'Lilian S' v Caltex Oil and Mini Bakeries (NRB) Ltd v Levi Karuz Omedo, the court held that jurisdiction is everything. Having found she had no jurisdiction, the magistrate's refusal to strike out the suit was an error in law. The suit was accordingly struck off for want of jurisdiction.
Effect of conflicting High Court and ELRC decisions post the Supreme Court WIBA judgment
Decisions inconsistent with the Supreme Court's limitation of legitimate expectation to pre-WIBA pending litigation are not to be followed
The court respectfully found West Kenya Sugar Co Ltd v Tito Lucheli Tangale, which extended legitimate expectation to claims filed between May 22, 2008 and December 3, 2019, inconsistent with the Supreme Court's paragraph 85 holding and therefore not to be followed, since Supreme Court decisions are binding on this court.
Legal principles established
#- Jurisdiction is everything; without it a court has no power to take one more step
- A suit filed before a court without jurisdiction is incompetent and must be struck off, not transferred
- Legitimate expectation to conclude cases in courts under the pre-WIBA regime applies only to litigation pending before the courts prior to WIBA's entry into force; all post-WIBA work injury claims lie with the Director under section 52 of WIBA
- Jurisdiction is not a procedural technicality and cannot be overcome under Article 159(2)(d)
Court orders
#- 1.The appeal is allowed
- 2.The judgment of February 9, 2023 in Bungoma ELRC Appeal E009 of 2020 West Kenya Sugar Co. Ltd v Elphas Kisohole Keiza is upheld to apply mutatis mutandis in the instant appeal
- 3.The ruling of the trial magistrate court in Butali PMCC No. 160 of 2018 delivered October 26, 2020 and decree dated October 26, 2020 is set aside and substituted with an order that the Preliminary Objection dated January 22, 2020 is upheld
- 4.The suit dated June 11, 2018 is struck off for want of jurisdiction
- 5.Each party to bear own costs both in this appeal and in the trial magistrate's court
- 6.The instant judgment to apply in determination of Bungoma ELRC Appeals E011 of 2021 and E010 of 2021
- On appeal from
- Principal Magistrate's Court, Butali
- Butali PMCC No. 160 of 2018 (Anzala Ronald Lichinga v West Kenya Sugar Limited)
- Jurisdiction invoked
- Appeals from subordinate courts in employment and labour matters under the Employment and Labour Relations Court Act (appeal against trial magistrate's ruling on jurisdiction under WIBA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Lichinga (Employment and Labour Relations Appeal E023 of 2021) [2023] KEELRC 597 (KLR)", Case Analysis (2023). Bungoma ELRC Appeal (E009 of 2021 related; instant appeal from Butali PMCC No. 160 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/597/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.