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ELRCAllowedEmployment and Labour Relations Appeal (Bungoma) – appeal from Kakamega CMCC No 56 of 2018· [2023] KEELRC 660 (KLR)

West Kenya Sugar Company Limited v Kakai (Employment and Labour Relations Appeal 15 of 2021) [2023] KEELRC 660 (KLR)

Employment and Labour Relations Court of Kenya
9 March 2023
4,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, West Kenya Sugar Company Limited, appealed against a ruling of Hon. R.N Akee (RM) delivered on February 17, 2021 in Kakamega CMCC No 56 of 2018, in which the trial magistrate dismissed its preliminary objection challenging the subordinate court's jurisdiction over the respondent's work injury claim. The trial magistrate had reasoned that a preliminary objection ought to emanate from the pleadings and that the appellant had not raised the jurisdictional point in its defence. The appeal was canvassed by written submissions. The court framed two issues: whether the magistrate erred in dismissing the objection because it was not raised in the defence, and whether the objection was merited. On the first issue, the court held that jurisdiction flows only from the Constitution and statute, cannot be conferred by consent or acquiescence, and may be raised at any stage, relying on Samuel Kamau Macharia, Orange Democratic Movement v Yusuf Ali Mohamed and Jamal Salim. On the second issue, applying the Court of Appeal decision in Attorney General v Law Society of Kenya [2017] and the Supreme Court's Law Society of Kenya v Attorney General [2019], the court held that the legitimate expectation protecting court litigation applies only to claims pending before WIBA came into force; post-WIBA work injury claims must first go to the Director of Occupational Safety and Health Services. The respondent's suit, filed in 2018, was therefore in the wrong forum. The court declined to follow West Kenya Sugar Co Ltd v Tito Lucheli Tangale as inconsistent with those binding decisions, and upheld its own prior decisions. The appeal was allowed: the trial ruling was set aside, the preliminary objection was upheld, the subordinate court suit was struck out for want of jurisdiction with costs to the appellant, and costs of the appeal were awarded to the appellant, with a right of appeal in 30 days.

Key legal issues

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01

Whether a preliminary objection on jurisdiction may be raised although not pleaded in the defence

Holding

Yes. The trial magistrate erred in requiring the point to appear in the defence.

Reasoning

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.

p. 6
02

Whether the magistrate's court had jurisdiction over the respondent's work injury claim filed in 2018 under WIBA

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The Ruling of the trial magistrate court delivered on February 17, 2021 is set aside
  3. 3.In its place, an order that the Preliminary Objection dated March 17, 2020 is upheld
  4. 4.The suit dated February 7, 2018 (Kakamega CMCC No 56 of 2018) is struck off for want of jurisdiction
  5. 5.Costs of the subordinate court suit to the appellant/respondent
  6. 6.Costs of the appeal to the appellant
  7. 7.Right of appeal in 30 days

Authorities

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Legislation

  • Work Injury Benefits Actsections 16, 23(1), 52, 26, 58(2)
  • Workmen's Compensation Act (Cap. 236)
  • Employment and Labour Relations Actsection 33
  • Interpretation and General Provisions Actsection 23
  • Civil Procedure Rules

Cases cited (18)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    [1948] EA 123
  • Law Society of Kenya v Attorney General & another
    Supreme Court Petition No 4 of 2019 [2019] eKLR
  • Kenya National Highways Authority v George Kirima Abuaba
    [2021] eKLR
  • A.W.G v D.N.K & another
    [2022] eKLR
  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Galaxy Paints Company Limited v Falcon Guards Limited
    Case No 219 of 2018 (UR)
  • Joseph Mbuta Nziu v Kenya Orient Insurance Company Limited
    [2015] eKLR
  • Adetoun Oladeji (Nig) Ltd v Nigeria Breweries PLC
    S.C. 91/2002
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & others
    [2012] eKLR
  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others
    [2018] eKLR
  • Jamal Salim v Yusuf Abdulahi Abdi & another
    Civil Appeal No 103 of 2016 [2018] eKLR
  • Adero & Another v Ulinzi Sacco Society Limited
    [2002] 1 KLR 577
  • Mukisa Biscuits
  • West Kenya Sugar Company Ltd v Tito Lucheli Tangale
    [2021] eKLR
  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
  • West Kenya Sugar Co Ltd v Shirandula
    (Employment and Labour Relations Appeal E005 of 2021) [2022] KEELRC 13284 (KLR) (24 November 2022)
  • West Kenya Sugar Co. Ltd v Libuyi
    (Appeal E013 of 2021) [2022] KEELRC 13244 (KLR) (17 November 2022)
  • West Kenya Sugar Co. Ltd v Sakasa
    (Employment and Labour Relations Appeal E006 of 2021) [2022] KEELRC 13187 (KLR) (10 November 2022)
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

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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, "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.