Kariri Limited v Gisiaina (Appeal E123 of 2021) [2023] KEELRC 1184 (KLR)
The bottom line
#Workplace injury claims filed after November 2017 in Kenya must go through DOSHS, not the courts—filing in court risks having your case thrown out entirely.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over WIBA claims after 17th November, 2017
The trial Magistrate had no jurisdiction because Section 16 of WIBA, 2007, restored by the Court of Appeal on 17th November, 2017 and upheld by the Supreme Court on 3rd December, 2019, bars court actions for workplace injuries and vests determination in the Director.
The Court of Appeal set aside the High Court's declaration of unconstitutionality in respect of Sections 4, 16, 21(1), 23(1), 25(1)(3), 52(1)(2) and 58(2) of WIBA, leaving only Sections 7 and 10(4) invalid. From 17th November, 2017 those provisions were part of the operative legal framework. The Respondent's suit was filed on 7th March, 2018, after that date, so Section 16 barred the court action and required recourse to the Director (DOSHS).
Legitimate expectation to have the suit heard in court
The Respondent could not assert legitimate expectation; the doctrine applies only to claims filed while the High Court's judge-declared law was in force (before 17th November, 2017), and the Magistrate misconstrued its scope.
Both the Court of Appeal and the Supreme Court addressed legitimate expectation only in the context of claims pending before or at the commencement of WIBA on 2nd June, 2008. West Kenya Sugar v Tangale covered suits filed between 22nd May, 2008 and 3rd December, 2019 during the currency of judge-declared law, but that case was filed in 2017 while the instant suit was filed in March 2018, after the Court of Appeal decision; the two cases are distinguishable.
Distinguishing West Kenya Sugar Co. Ltd v Tito Lucheli Tangale
That case is distinguishable because its claim was filed on 8th June, 2017 during the currency of the High Court decision, whereas the present suit was filed in March 2018 after the Court of Appeal had restored Section 16 of WIBA.
The court agreed that litigants who filed claims during the currency of judge-made law could assert legitimate expectation, but held the legal terrain changed on 17th November, 2017 when the Court of Appeal set aside the High Court decision. The Respondent filed suit after that change and offered no justification for not invoking the WIBA framework.
Legal principles established
#- Once the Court of Appeal set aside the High Court decision invalidating Section 16 of WIBA on 17th November, 2017, claims for work-related injuries had to be lodged with the Director (DOSHS) under the Act, not filed in court.
- Legitimate expectation under the Supreme Court's decision in Law Society of Kenya v Attorney General applies to claims pending or filed during the currency of the High Court's judge-declared law, not to suits filed after the Court of Appeal restored Section 16 of WIBA.
Court orders
#- 1.The ruling delivered by the learned trial Magistrate on 29th July, 2021 is set aside
- 2.The Preliminary Objection dated 7th May, 2021 is allowed and the claim is transferred to the Director Occupational Safety and Health Services (DOSHS) for determination
- 3.Parties to bear their own costs
- On appeal from
- Senior Resident Magistrate's Court, Thika
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court ruling in a WIBA matter (ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariri Limited v Gisiaina (Appeal E123 of 2021) [2023] KEELRC 1184 (KLR)", Case Analysis (2023). Appeal No E123 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1184/eng@2023-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.