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ELRCDismissedELRC Appeal (Kakamega), memorandum of appeal dated 6th September 2021 arising from Butali SPM Civil Suit No. 113 of 2017· [2023] KEELRC 1620 (KLR)

West Kenya Sugar Co Ltd v Mukubwa (Employment and Labour Relations Appeal 20 of 2023) [2023] KEELRC 1620 (KLR)

Employment and Labour Relations Court
29 June 2023
6,609 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The Employment Court confirmed that Kenyan magistrates' courts can decide work injury claims filed before December 2019, dismissing West Kenya Sugar's appeal.

What this practically means

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Executive summary

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West Kenya Sugar Co. Ltd appealed a ruling of Hon. Z.J. Nyakundi (PM) of 26th August 2021 in Butali SPM Civil Suit No. 113 of 2017 (George Mukubwa v West Kenya Sugar Co. Ltd), in which the respondent claimed general and special damages for workplace injuries. The appellant had raised a preliminary objection asserting that the magistrate's court lacked jurisdiction over Work Injury Benefits Act claims under sections 16, 23 and 52 of WIBA, relying on the Supreme Court's decision in Law Society of Kenya v Attorney General (Petition No. 4 of 2019). The magistrate held himself bound by his earlier ruling and functus officio, granted 45 days' leave to appeal, and directed that the order apply to all WIBA claims irrespective of representation. The appeal, canvassed by written submissions, raised whether the magistrate misapprehended the law and whether the trial court had jurisdiction. The High Court (Keli J) restated the Supreme Court's holding: legitimate expectation protected only litigation pending before WIBA commenced on 2nd June 2008; post-WIBA claims fall under section 52 before the Director of Occupational Safety and Health Services, and the Kisumu High Court decision in West Kenya Sugar v Tito Lucheli Tangale extending protection to claims filed up to 3rd December 2019 was inconsistent with the binding Supreme Court decision. However, the court then took account of the Chief Justice's Practice Directions (Gazette Notice No. 5476 of 28th April 2023), which expressly grant magistrates' courts jurisdiction over WIBA claims filed after WIBA's commencement but before 3rd December 2019. Finding the directions valid by doctrine of necessity and consistent with Articles 48 and 159 of the Constitution, and no tangible prejudice to the appellant, the court dismissed the appeal and ordered each party to bear their own costs.

Key legal issues

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01

Whether the trial magistrate misapprehended the law and erred in holding himself functus officio without hearing the preliminary objection

Holding

No. The trial court's practice of upholding its earlier pronouncement on WIBA jurisdiction and applying it to all WIBA matters was a proper practice and sound reasoning; the magistrate had addressed the authorities and explained why he did not depart from his earlier decision, as they were of courts of equal status.

Reasoning

The High Court found the magistrate did not deliver a fresh considered ruling but followed his earlier decision in Butali CC No. 56 of 2015, which had upheld Justice Radido's decision in ELRC Kisumu Appeal No. 4 of 2019. Because the preliminary objection raised the identical jurisdictional issue on which the court had already pronounced itself and directed that the decision apply to all WIBA claims, this was a proper practice and sound reasoning of the law, not a misapprehension.

p. 6
02

Scope of legitimate expectation in WIBA claims after the Supreme Court decision in Law Society of Kenya v Attorney General (Petition No. 4 of 2019)

Holding

Legitimate expectation protects only litigation pending before courts prior to WIBA's entry into force (2nd June 2008); claims filed after WIBA's commencement fall under section 52 before the Director of Occupational Safety and Health Services. The decision in West Kenya Sugar Co Ltd v Tito Lucheli Tangale extending that window to 3rd December 2019 is inconsistent with the binding Supreme Court decision.

Reasoning

The Court of Appeal, upheld by the Supreme Court at paragraph 85, held that claimants with cases pending at WIBA's commencement had legitimate expectation their cases would be concluded under the judicial process invoked, but that absent that expectation all matters are best finalised under section 52. The suit here was filed in 2017, post-WIBA, so it was before the wrong forum absent any other source of jurisdiction; the Kisumu High Court decision creating a lacuna-based extension was not consistent with the binding Supreme Court holding.

p. 8
03

Effect of the Chief Justice's Practice Directions (Gazette Notice No. 5476, 28th April 2023) on WIBA claims pending in magistrates' courts

Holding

The Practice Directions expressly grant magistrates' courts jurisdiction to hear and determine WIBA claims filed after the commencement of WIBA but before the Supreme Court decision of 3rd December 2019; the respondent's 2017 suit therefore remains properly before the magistrate's court and the appeal fails.

Reasoning

The directions, issued under Articles 159(2) and 161(2)(a), the Judicature Act, the Judicial Service Act and section 27 of the Employment and Labour Relations Act, direct that all claims filed after WIBA's commencement and before 3rd December 2019 proceed to conclusion in the ELRC or Magistrates' Courts. The court found these directions valid by doctrine of necessity, promoting access to justice and substantive justice under Articles 159 and 48, and found no tangible prejudice to the appellant.

p. 12

Legal principles established

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  • Legitimate expectation applies only to work-injury litigation pending before the courts prior to the entry into force of WIBA; all other WIBA claims lie with the Director of Occupational Safety and Health Services, per the Supreme Court in Law Society of Kenya v Attorney General
  • Jurisdiction is not a procedural technicality; without jurisdiction a court cannot take any further step
  • The Chief Justice's WIBA Practice Directions of 28th April 2023 vest jurisdiction in the magistrates' courts over work-injury claims filed before 3rd December 2019

Court orders

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  1. 1.The appeal dated 6th September 2021 is dismissed
  2. 2.Each party to bear their 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)general
  • Interpretation and General Provisions Actsection 23
  • Employment and Labour Relations Actsections 33, 29(3) and (4), 27
  • Judicature Actsection 10
  • Judicial Service Actsection 5(1) and 2(c)
  • Constitution of KenyaArticles 48, 159(1), 159(2), 161(2)(a)
  • Practice Directions relating to pending court claims for compensation for work related injuries and diseases instituted prior to the Supreme Court decision in Law Society of Kenya v Attorney General, Gazette Notice No. 5476whole instrument, dated 24th April 2023, issued 28th April 2023

Cases cited (14)

  • Law Society of Kenya v The Attorney General and Central Organization of Trade Union (K), Supreme Court Appeal/Petition No. 4 of 2019
    [2019] eKLR
  • Attorney General v Law Society of Kenya & Another
    [2017] eKLR, Court of Appeal No. 133 of 2011
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • West Kenya Sugar Co. Ltd v Tito Lucheli Tangale
    (2021) eKLR, Kisumu Appeal No. 4 of 2019
  • Heritage Insurance Company Limited v David Fikiri Joshua & 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 Shirandula
    (Employment and Labour Relations Appeal E005 of 2021) [2022] KEELRC 13284 (KLR)
  • West Kenya Sugar Co. Ltd v Libuyi
    (Appeal E013 of 2021) [2022] KEELRC 13244 (KLR)
  • West Kenya Sugar Co. Ltd v Sakasa
    (Employment and Labour Relations Appeal E006 of 2021) [2022] KEELRC 13187 (KLR)
  • West Kenya Sugar Co. Ltd v Edward Alphew Ambesta
    Bungoma ELRC Appeal No. E004 of 2021
  • Attorney-General and 2 Others v Ndii and 79 Others; Prof. Rosalind Dixon and 7 Others (Amicus Curiae)
    (Petition 12, 11 and 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR)
  • Law Society of Kenya v Attorney General & Another
    (2009) eKLR, High Court judgment dated 4th March 2009
On appeal from
Butali Senior Principal Magistrate's Court (ruling of Hon. Z.J. Nyakundi, PM)
Butali SPM Civil Suit No. 113 of 2017
Jurisdiction invoked
Employment and Labour Relations Court appellate jurisdiction under the Employment and Labour Relations Court Act (appeal from magistrate's court ruling on WIBA jurisdiction)

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 Mukubwa (Employment and Labour Relations Appeal 20 of 2023) [2023] KEELRC 1620 (KLR)", Case Analysis (2023). ELRC Appeal (Kakamega), memorandum of appeal dated 6th September 2021 arising from Butali SPM Civil Suit No. 113 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1620/eng@2023-06-29

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