West Kenya Sugar Co Ltd v Mukubwa (Employment and Labour Relations Appeal 20 of 2023) [2023] KEELRC 1620 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial magistrate misapprehended the law and erred in holding himself functus officio without hearing the preliminary objection
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.
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.
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)
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.
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.
Effect of the Chief Justice's Practice Directions (Gazette Notice No. 5476, 28th April 2023) on WIBA claims pending in magistrates' courts
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.
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.
Legal principles established
#- 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
#- 1.The appeal dated 6th September 2021 is dismissed
- 2.Each party to bear their own costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.