Kite v Teachers Service Commission (Cause 1186 of 2018) [2023] KEELRC 1347 (KLR)
The bottom line
#A Kenyan employment court struck out work injury claims for going through the wrong legal channel, but the rest of the case survives on timing.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is competent
It is competent because it is grounded on limitation of time and jurisdiction, which are pure points of law under the Mukisa Biscuits test
The court applied the Mukisa Biscuits formulation and the G4S Security test, holding that limitation and jurisdiction raise pure points of law that may terminate a suit at the threshold without ascertaining facts.
Whether the court has jurisdiction over the WIBA claims
It does not; the WIBA claims should have been pursued under the Work Injury Benefits Act, 2007 regime, which was the operative law when the suit was filed on 12 July 2018
The suit was filed nearly seven months after the Court of Appeal decision of 17 December 2017 in the Law Society of Kenya litigation and before the Supreme Court's intervention. Following the Court of Appeal and Supreme Court decisions, all WIBA provisions other than sections 7 and 10(4) stood as valid law, so WIBA claims arising then had to follow the WIBA process through DOSHS.
Whether the suit is time barred under section 90 of the Employment Act
The limitation objection fails because contested factual issues exist regarding the claimant's employment history, notification of disability, date of birth and salary deductions
The claimant asserted unlawful salary deductions and unpaid salary from July 2016 to March 2017, and disputed facts concerning when he notified the respondent of his disability. Since a preliminary objection assumes all pleaded facts are correct and cannot proceed where facts must be ascertained, limitation could not be resolved on the pleadings.
Legal principles established
#- A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought
- Where a suit was filed after the Court of Appeal decision of 17 December 2017 but before the Supreme Court appeal in the Law Society of Kenya case, the operative regime for work injury claims was WIBA, 2007
Court orders
#- 1.The preliminary objection dated January 23, 2023 is partially successful to the extent that it relates to the court's jurisdiction to hear and determine WIBA claims but fails on the question of limitation of time
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction of the court over employment and work injury claims under the Employment Act, 2007 and the Work Injury Benefits Act, 2007; ruling on a preliminary objection under civil procedure practice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kite v Teachers Service Commission (Cause 1186 of 2018) [2023] KEELRC 1347 (KLR)", Case Analysis (2023). Cause No 1186 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1347/eng@2023-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.