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ELRCDismissedELRC Appeal (Kakamega) from Kakamega CMCC No. 234 of 2017· [2023] KEELRC 1603 (KLR)

West Kenya Sugar Co. Ltd v Nyongesa (Employment and Labour Relations Appeal 21 of 2023) [2023] KEELRC 1603 (KLR)

Employment and Labour Relations Court
29 June 2023
5,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld magistrates' power to hear work injury claims filed between 2008 and 2019, thanks to the Chief Justice's April 2023 Practice Directions.

What this practically means

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Executive summary

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West Kenya Sugar Co. Ltd appealed against a ruling of Hon. Erick Malesi (SPM) of 6th September 2022 in Kakamega CMCC No. 234 of 2017, in which the trial magistrate dismissed the appellant's preliminary objection that the magistrate's court lacked jurisdiction over a work-injury claim under sections 16, 23 and 52 of the Work Injury Benefits Act (WIBA), the trial court resting on the claimant's legitimate expectation. The ELRC (Jemimah Keli, J) framed three issues: whether the trial magistrate misapprehended the law, recent developments in the law on WIBA claims, and whether the magistrate's court had jurisdiction. The court first held, following the Court of Appeal in Attorney General v Law Society of Kenya and the binding Supreme Court decision in Law Society of Kenya v Attorney General (Petition No. 4 of 2019), that legitimate expectation protected only litigation pending before courts before WIBA's entry into force; the respondent's 2017 suit was therefore ordinarily before the wrong forum, and the court declined to follow West Kenya Sugar Co Ltd v Tito Lucheli Tangale as inconsistent with the Supreme Court. However, the court then turned to the Chief Justice's Practice Directions in Gazette Notice No. 5476 of 28th April 2023, issued while the appeal was pending, which expressly grant magistrates' courts jurisdiction over WIBA claims filed after WIBA's commencement but before the Supreme Court decision of 3rd December 2019. Holding the directions lawful under section 27 of the Employment and Labour Relations Act, valid by the doctrine of necessity, and consistent with Articles 48 and 159 of the Constitution, and finding no prejudice to the appellant, the court held the magistrate's court was now clothed with jurisdiction. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the trial magistrate misapprehended the law on WIBA jurisdiction

Holding

No. The legitimate expectation recognized by the Court of Appeal and Supreme Court was limited to litigation pending before courts prior to WIBA's entry into force (2nd June 2008); the suit having been filed in 2017, the appellant's preliminary objection would ordinarily have succeeded

Reasoning

The court analysed the Court of Appeal decision in Attorney General v Law Society of Kenya and the Supreme Court decision in Law Society of Kenya v Attorney General, holding that legitimate expectation covered only pending pre-WIBA cases, and found the decision in West Kenya Sugar Co Ltd v Tito Lucheli Tangale inconsistent with the binding Supreme Court holding. It upheld its own prior decisions that magistrates' courts lack jurisdiction over post-WIBA WIBA claims.

p. 7
02

Effect of the Chief Justice's Practice Directions of 28th April 2023

Holding

The Practice Directions expressly grant magistrates' courts jurisdiction over WIBA claims filed between WIBA's commencement and the Supreme Court decision of 3rd December 2019, so the trial court is clothed with jurisdiction and the appeal must fail

Reasoning

The court held the practice directions were lawfully issued by the Chief Justice under section 27 of the Employment and Labour Relations Act and the Constitution, passed muster by the doctrine of necessity, promoted substantive justice and access to justice under Articles 159 and 48, and caused no tangible prejudice to the appellant.

p. 10

Legal principles established

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  • Claimants in work-injury cases pending before courts prior to WIBA's commencement have a legitimate expectation that their cases will be concluded under the judicial process invoked; all post-WIBA claims lie before the Director of Occupational Safety and Health Services
  • Jurisdiction is not a procedural technicality; without jurisdiction a court cannot take any further step
  • Practice Directions issued by the Chief Justice in Gazette Notice No. 5476 of 28th April 2023 confer jurisdiction on magistrates' courts over WIBA claims filed after commencement of WIBA but before 3rd December 2019

Court orders

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  1. 1.The appeal dated 15th September 2022 is dismissed
  2. 2.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Work Injury Benefits Actsections 16, 23(1), 25(1) and (3), 52(1) and (2), 58(2)
  • Workmen's Compensation Act (Cap 236)repealed
  • Interpretation and General Provisions Actsection 23
  • Employment and Labour Relations Actsections 29(3) and (4), 33
  • Judicature Actsection 10
  • Judicial Service Actsection 5(1) and 2(c)
  • Constitution of KenyaArticles 48, 159(1)-(2), 161(2)(a)

Cases cited (15)

  • Hon Attorney General v Law Society of Kenya and Central Organization of Trade Union (COTU)
    Civil Appeal No. 133 of 2011; Attorney General v Law Society of Kenya & Another [2017] eKLR
  • Law Society of Kenya v The Attorney General and Central Organization of Trade Union (K)
    Petition No. 4 of 2019 [2019] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • West Kenya Sugar Co Ltd v Tito Lucheli Tangale
    (2021) eKLR; ELRC Kisumu Appeal No. 4 of 2019
  • Heritage Insurance Company Limited v David Fikiri Joshua and Another
    [2021] eKLR; Mombasa ELRC Civil Appeal No. 21 of 2019
  • Perfect Sean Limited v Harrison Kahindi Said
    Mombasa ELRC Civil Appeal No. 18 of 2020
  • Kiplagat Korir v Dennis Kipngeno Mutai
    [2006] eKLR
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    1989 eKLR
  • West Kenya Sugar Co. Ltd v George Mukubwa
    Kakamega ERLC Appeal No. 20 of 2023
  • West Kenya Sugar Co Ltd v Shirandula
    [2022] KEELRC 13284 (KLR); Employment and Labour Relations Appeal E005 of 2021
  • West Kenya Sugar Co. Ltd v Libuyi
    [2022] KEELRC 13244 (KLR); Appeal E013 of 2021
  • West Kenya Sugar Co. Ltd v Sakasa
    [2022] KEELRC 13187 (KLR); Employment and Labour Relations Appeal E006 of 2021
  • West Kenya Sugar Co. Ltd v Edward Alphew Ambesta
    Bungoma ELRC Appeal No. E004 of 2021
  • Law Society of Kenya v Attorney General & Another
    [2009] eKLR; judgment dated 4th March 2009
  • Attorney-General and 2 Others v Ndii and 79 Others; Prof. Rosalind Dixon and 7 Others (Amicus Curiae)
    [2022] KESC 8 (KLR); Petition 12, 11 and 13 of 2021 (Consolidated)
On appeal from
Chief Magistrate's Court, Kakamega
CMCC No. 234 of 2017
Jurisdiction invoked
Employment and Labour Relations Court appellate jurisdiction over appeals from magistrates' courts under the Employment and Labour Relations Act; appeal against ruling on preliminary objection on jurisdiction under sections 16, 23 and 52 of the Work Injury Benefits Act

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 Co. Ltd v Nyongesa (Employment and Labour Relations Appeal 21 of 2023) [2023] KEELRC 1603 (KLR)", Case Analysis (2023). ELRC Appeal (Kakamega) from Kakamega CMCC No. 234 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1603/eng@2023-06-29

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