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ELRCPartially AllowedAppeal No 1 of 2023· [2023] KEELRC 1176 (KLR)

Zhongmei Engineering Group Ltd v Obiero (Appeal 1 of 2023) [2023] KEELRC 1176 (KLR)

Employment and Labour Relations Court
17 May 2023
RSRadido Stephen
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a worker's injury payout from Kshs 1.75 million to Kshs 900,000, but confirmed magistrates' courts could hear older workplace injury claims.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the Principal Magistrate awarding the Respondent general damages of Kshs 1,312,500/- (after contributory negligence of 25% consent), special damages of Kshs 101,000/- and future medical expenses of Kshs 75,000/- for workplace injuries. Liability had been settled by consent at 25/75 in the Respondent's favour. The appeal had earlier been lodged in the High Court at Nyamira, which declined jurisdiction on 9 March 2023 and directed transfer to this Court. The Appellant argued the general damages award was excessive, special damages lacked documentary support, and that the trial Magistrate lacked jurisdiction over WIBA matters. On jurisdiction, the Court held that although section 16 of the Work Injury Benefits Act ousted first instance court jurisdiction, that section had been declared invalid by the High Court on 4 March 2009 and the Court of Appeal, having refused a stay, did not overturn the declaration until 17 November 2017. Suit having been filed on 21 February 2017, section 16 was then invalid and the magistrates' court had jurisdiction, a position reinforced by the Chief Justice's Practice Directions of 28 April 2023. On quantum, the trial Magistrate's comparative authority involved dissimilar injuries and the award was inordinately excessive; Kshs 1,200,000/- (Kshs 900,000/- after contributory liability) was substituted. The special damages and future medical expenses awards were upheld. The appeal partially succeeded, with each party bearing their own costs of the appeal and the Respondent retaining trial court costs.

Key legal issues

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01

Jurisdiction of the Principal Magistrates Court over a work injury claim filed on 21 February 2017

Holding

The Principal Magistrates Court had jurisdiction at the material time because section 16 of WIBA had been declared invalid by the High Court on 4 March 2009 and the Court of Appeal did not stay that declaration pending its appeal decided on 17 November 2017.

Reasoning

Section 16 of WIBA ousted first instance court jurisdiction over work injury claims, but the High Court declared it unconstitutional on 4 March 2009. The Court of Appeal overturned that declaration only on 17 November 2017, having refused a stay of the declaration of invalidity. When the Respondent filed suit on 21 February 2017, section 16 was therefore invalid by judicial decision, and the Chief Justice's Practice Directions of 28 April 2023 underscore the jurisdiction of courts over claims filed before the Supreme Court decision in Law Society of Kenya v Attorney General.

p. 4
02

Whether the award of general damages was excessive

Holding

The award of Kshs 1,750,000/- was inordinately excessive; Kshs 1,200,000/- was appropriate, reduced to Kshs 900,000/- after the 25/75 consent on liability.

Reasoning

The trial Magistrate relied on Sammy Machoka Oira v Josphat Mwangi Kihuro & Anor, where the injuries (traumatic disc protrusion with spinal stenosis) were completely unlike the Respondent's fractures of the limb spine and pelvis. The authorities the Respondent relied on before this Court involved more extensive injuries. Joseph Njeru Luke & Ors v Stella M. Kioko, where a pelvic fracture and soft tissue injuries attracted Kshs 750,000/-, involved more or less similar injuries and guided the substitution.

p. 4
03

Whether the special damages award of Kshs 101,000/- was unsupported

Holding

The award was grounded on documentary evidence; receipts totalling Kshs 101,000/- were produced and admitted by consent.

Reasoning

The Respondent pleaded Kshs 127,500/- but the receipts produced totalled Kshs 101,000/-, and those receipts were admitted by consent of the parties, so the Appellant's ground of appeal on this head fails.

p. 4

Legal principles established

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  • The question of jurisdiction can be raised at any time, even on appeal and equally at the instance of the Court.
  • A first appellate court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses.
  • On the state of the law as at 21 February 2017, section 16 of the Work Injury Benefits Act stood declared invalid and had not been stayed, so the magistrates' court retained jurisdiction over claims filed at that time.

Court orders

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  1. 1.The Principal Magistrate's Court had jurisdiction to entertain the claim
  2. 2.The assessment and award of general damages of Kshs 1,750,000/- is set aside and substituted with an award of Kshs 1,200,000/- (Kshs 900,000/- after factoring in contributory liability)
  3. 3.The award of special damages of Kshs 101,000/- upheld
  4. 4.The award of future medical expenses of Kshs 75,000/- not disturbed
  5. 5.Each party to bear own costs of the appeal
  6. 6.The Respondent to have costs before the Principal Magistrate's Court

Authorities

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Legislation

  • Work Injury Benefits Act, 2007sections 16(2)(1), 23(1), 25(1) & (3), 52(1) & (2) and 58(2); section 16
  • Workmen's Compensation Actreferred to generally in the interim order

Cases cited (8)

  • Kamau v Mungai
    [2006] 1 KLR 150
  • Attorney General v Law Society of Kenya
    [2017] eKLR
  • Law Society of Kenya v Attorney General & Anor
    (2019) eKLR, Petition No. 4 of 2019
  • Attorney General v Law Society of Kenya & Anor
    Nairobi Civil Appl. No. 144 of 2009 (UR 97/2009), [2009] eKLR
  • Sammy Machoka Oira v Josphat Mwangi Kihuro & Anor
    [2008] eKLR
  • Reginald Mpinda v Reuben Muthiora Johny
    [2022] eKLR
  • Kimathi Muturi Donald v Kevin Ochieng Aseso
    [2021] eKLR
  • Joseph Njeru Luke & Ors v Stella M. Kioko
    [2020] eKLR
On appeal from
Principal Magistrates Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over appeals from the Principal Magistrates Court in a work injury claim; jurisdiction of the trial court considered under the Work Injury Benefits Act, 2007

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, "Zhongmei Engineering Group Ltd v Obiero (Appeal 1 of 2023) [2023] KEELRC 1176 (KLR)", Case Analysis (2023). Appeal No 1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1176/eng@2023-05-17

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