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ELRCDismissedNot stated in judgment (application dated December 7, 2021 in a Statement of Claim filed December 8, 2021)· [2023] KEELRC 990 (KLR)

Karimi v Kenya Women Finance Bank Ltd (Cause E1018 of 2021) [2023] KEELRC 990 (KLR)

Employment and Labour Relations Court
28 April 2023
SRStella Rutto
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled it cannot enforce workplace injury awards from the Director; injured workers must take these awards to a Magistrate's Court instead.

What this practically means

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Executive summary

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The Claimant filed a Statement of Claim on December 8, 2021 together with a Motion dated December 7, 2021 seeking to compel the Respondent to pay Kshs 2,065,728.00 plus interest, being an award made on November 7, 2019 by the Director of Occupational Safety and Health Services under WIBA, whose objection had been declined. The Respondent, through Mr. Kairu Timothy Waweru's replying affidavit, admitted the award but explained it had drafted a memorandum of appeal under Section 52(2) WIBA yet could not file it because the Judiciary's E-filing portal had no provision for appeals from the Director; follow-ups with the court's ICT department had gone unanswered. The Applicant countered that the E-filing platform did not exist as at January 12, 2020, so the appeal should have been filed then, and relied on the Arafa Amin Mohamed case. The matter was canvassed by written submissions pursuant to the court's directions of January 25, 2022. Holding the matter, Stella Rutto J found that the claim and application were not properly before the Court: no statutory provision empowers the ELRC to enforce a Director's award, the Court's WIBA jurisdiction being appellate only under Section 52(2), as confirmed by the Supreme Court in Law Society of Kenya v Attorney General & another. The Applicant, already holding an award, ought to have sought its adoption by Miscellaneous Application, which the court held could only be brought before a Magistrate's Court, since enforcement by the ELRC would defeat the Respondent's right of appeal. The application was dismissed with no orders as to costs on April 28, 2023.

Key legal issues

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01

Jurisdiction to enforce a Director's award under WIBA

Holding

The Court cannot enforce the Director's Award; the claim and application were misconceived as to forum and procedure

Reasoning

The court held there is a lacuna: no provision empowers the ELRC to enforce awards of the Director, whose awards the ELRC may only hear on appeal under Section 52(2) WIBA, as confirmed by the Supreme Court in Law Society of Kenya v Attorney General & another. The Applicant, already holding an award, should have sought adoption by Miscellaneous Application before a Magistrate's Court, since the ELRC enforcing the award would then sit in appeal over the same issue.

p. 2
02

Respondent's failure to file an appeal against the Director's Award

Holding

The Court did not decide on the merits of the non-payment; the excuse (E-filing portal lacking provision for Director's appeals) was raised but the application failed on jurisdiction

Reasoning

The Respondent admitted the award and declined objection, explaining non-filing of its memorandum of appeal on the absence of an E-filing provision for Director's appeals and follow-ups with the ICT department. The Applicant contended the E-filing platform did not exist as at January 12, 2020. The court did not resolve this contest, instead disposing of the matter on jurisdictional grounds.

p. 2

Legal principles established

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  • The ELRC's jurisdiction under WIBA is appellate (Section 52(2)); it has no original jurisdiction to enforce or adopt an award made by the Director of Occupational Safety and Health Services
  • An application for adoption of a Director's award should be brought by Miscellaneous Application, not a full-blown Claim, and lies before a Magistrate's Court

Court orders

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  1. 1.The Application dated December 7, 2021 was dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Work Injury Benefits Act (WIBA)Section 52(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Arafa Amin Mohamed (suing as the legal representative to the Estate of Omar Khatib Abdulkadir- Deceased) vs Dola Feeds (K) Limited (2022) eKLR
    (2022) eKLR
  • Law Society of Kenya vs Attorney General & another [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act (appellate jurisdiction of the ELRC over the Director's awards)

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, "Karimi v Kenya Women Finance Bank Ltd (Cause E1018 of 2021) [2023] KEELRC 990 (KLR)", Case Analysis (2023). Not stated in judgment (application dated December 7, 2021 in a Statement of Claim filed December 8, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/990/eng@2023-04-28

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