Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCivil Appeal No. 137 of 2018· [2023] KEELRC 1922 (KLR)

Oyuga v Harvest Limited (Appeal 2 of 2023) [2023] KEELRC 1922 (KLR)

Employment and Labour Relations Court
28 July 2023
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan worker who sued for pesticide-related lung damage lost because workplace injury claims must go through WIBA's compensation process, not the courts.

What this practically means

#

Executive summary

#
The appellant sued the respondent in the chief magistrate's court in February 2010, claiming he suffered lung damage from pesticide exposure while employed between 2002 and 2009, and sought general damages, special damages of Kshs.2,000, costs and interest. The trial court dismissed the suit for want of jurisdiction, holding the plaintiff should have moved the Director of Work Injury Benefits under WIBA. The appellant appealed to the High Court at Machakos, arguing that Gazette Notice No. 9243 of 27.07.2011 designated magistrates of the rank of Senior Resident Magistrate and above to hear work injury matters, and that conservatory orders and practice directions supported jurisdiction. The appeal was transferred to the ELRC by M.W. Muigai J on April 17, 2023. The ELRC (Byram Ongaya, Principal Judge) held that although the gazette notice had not been revoked and remained in force under section 24 of the Interpretation and General Provisions Act despite the repeal of section 16(2) of the Labour Institutions Act, it could not confer jurisdiction inconsistent with section 16 of WIBA, a primary statute ousting court actions for work injury damages. The suit was filed after WIBA came into operation, so section 16 applied. The court also held the trial court erred in requiring magistrates to be appointed by name rather than by rank, but this did not cure the jurisdictional deficit. The conservatory order in Juma Nyamawi Ndungo was not shown to have been drawn to the trial court's attention. The appeal was disallowed with each party bearing its own costs, given the legal circuitousness surrounding WIBA's constitutionality.

Key legal issues

#
01

Whether Gazette Notice No. 9243 of 27.07.2011 conferred jurisdiction on the trial magistrate to entertain a work injury claim notwithstanding section 16 of WIBA

Holding

The gazette notice remained in force despite repeal of section 16(2) of the Labour Institutions Act, but could not confer jurisdiction inconsistent with section 16 of WIBA, which ousts court actions for work injury damages

Reasoning

The court found the gazette notice was never revoked and remained valid under section 24 of the Interpretation and General Provisions Act. However, being subsidiary legislation, it could not override the primary provision in section 16 of WIBA, which bars actions for recovery of damages for occupational accidents save under the Act. Since the suit was filed after WIBA came into operation, section 16 applied and the magistrate's court had no jurisdiction.

p. 5
02

Whether the Chief Justice was required to appoint magistrates by name rather than by rank

Holding

Appointment by rank of Senior Resident Magistrate and above was sufficient; the trial court erred in requiring appointment by name

Reasoning

The enabling legislation, section 29(3) of the Employment and Labour Relations Court Act, permits the Chief Justice to appoint magistrates by notice in the gazette without specifying names. Appointment of all magistrates of the rank of Senior Resident Magistrate and above was therefore effective, though the notice still could not confer jurisdiction over WIBA claims.

p. 5
03

Whether the conservatory order in Juma Nyamawi Ndungo obliged the trial court to assume jurisdiction

Holding

There was no evidence the decision was drawn to the trial court's attention before its judgment

Reasoning

The Ogola conservatory order of July 24, 2018 stayed sections of WIBA and allowed magistrate court injury claims to proceed. However, the trial court delivered judgment on September 29, 2018, and the record contained nothing showing the order had been brought to its attention and urged as a basis for assuming jurisdiction, so it could not be faulted for ignoring it.

p. 5

Legal principles established

#
  • Subsidiary legislation cannot be inconsistent with a primary statutory provision
  • Subsidiary legislation issued under a repealed statutory provision remains in force until revoked, per section 24 of the Interpretation and General Provisions Act
  • Appointment of magistrates under section 29(3) of the ELRC Act by rank is sufficient; no requirement of appointment by name

Court orders

#
  1. 1.The appeal is disallowed
  2. 2.Each party to bear own costs of the appeal/proceedings

Authorities

#

Legislation

  • Employment and Labour Relations Court Actsections 29(3), 29(4), 27
  • Work Injury Benefits Act (WIBA)sections 16, 23, 53(c), 53(d), 58(2), 4, 7(1)(2), 10, 21(1), 25(1)(3), 52(1)(2)
  • Magistrates Court Actsection 9(b)
  • Labour Institutions Act, 2007section 16(2) (repealed)
  • Interpretation and General Provisions Actsection 24
  • Constitution of Kenyaarticle 169(2)(a)
  • Employment Act, 2007
  • Occupational Safety and Health Act, 2007
  • Labour Relations Act, 2007

Cases cited (3)

  • Law Society of Kenya v Attorney General & another
    (2009) eKLR
  • Attorney General v Law Society of Kenya & another
    (2017) eKLR, Nairobi Civil Appeal No. 133 of 2011
  • Juma Nyamawi Ndungo & 5 others v Attorney General; Mombasa Law Society (Interested Party)
    [2019] eKLR
On appeal from
Chief Magistrate's Court (transferred from the High Court at Machakos)
Civil Appeal No. 137 of 2018
Jurisdiction invoked
Employment and Labour Relations Court Act, section 29; appeal transferred to the ELRC by order of the High Court (M.W. Muigai J, April 17, 2023)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Oyuga v Harvest Limited (Appeal 2 of 2023) [2023] KEELRC 1922 (KLR)", Case Analysis (2023). Civil Appeal No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1922/eng@2023-07-28

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