West Kenya Sugar Company Limited v Kakai (Employment and Labour Relations Appeal 15 of 2021) [2023] KEELRC 660 (KLR)
The bottom line
#A Kenyan court struck out a worker's injury claim because work injury cases must go to the labour office first, not court.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection on jurisdiction may be raised although not pleaded in the defence
Yes. The trial magistrate erred in requiring the point to appear in the defence.
The court reasoned that jurisdiction flows only from the Constitution and statute; parties cannot confer it by consent, omission or acquiescence. A challenge to jurisdiction is a pure point of law and may be raised at any stage, citing Samuel Kamau Macharia, Orange Democratic Movement v Yusuf Ali Mohamed and Jamal Salim. The trial court's reliance on Mukisa Biscuits to require the objection to emanate from pleadings was misplaced.
Whether the magistrate's court had jurisdiction over the respondent's work injury claim filed in 2018 under WIBA
No. Post-WIBA work injury claims must first go to the Director of Occupational Safety and Health Services; only claims pending before WIBA's commencement enjoy the legitimate expectation exception.
Applying the Court of Appeal decision in Attorney General v Law Society of Kenya [2017] eKLR and the Supreme Court's Law Society of Kenya v Attorney General [2019] eKLR, the court held that the legitimate expectation doctrine protects only litigation pending at WIBA's commencement (2 June 2008). The suit was filed in 2018, after WIBA's commencement, so the subordinate court lacked jurisdiction. West Kenya Sugar Co Ltd v Tito Lucheli Tangale was held inconsistent with these binding decisions.
Legal principles established
#- Jurisdiction is conferred only by the Constitution or statute and cannot be conferred by the parties' consent or acquiescence; it may be raised at any stage.
- Work injury claims filed after the entry into force of WIBA fall to the Director of Occupational Safety and Health Services in the first instance; the legitimate expectation exception protects only litigation pending before courts before WIBA's commencement.
Court orders
#- 1.The appeal is allowed
- 2.The Ruling of the trial magistrate court delivered on February 17, 2021 is set aside
- 3.In its place, an order that the Preliminary Objection dated March 17, 2020 is upheld
- 4.The suit dated February 7, 2018 (Kakamega CMCC No 56 of 2018) is struck off for want of jurisdiction
- 5.Costs of the subordinate court suit to the appellant/respondent
- 6.Costs of the appeal to the appellant
- 7.Right of appeal in 30 days
- On appeal from
- Chief Magistrate's Court, Kakamega
- Kakamega CMCC No 56 of 2018
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court in employment/work injury matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Kakai (Employment and Labour Relations Appeal 15 of 2021) [2023] KEELRC 660 (KLR)", Case Analysis (2023). Employment and Labour Relations Appeal (Bungoma) – appeal from Kakamega CMCC No 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/660/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.