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ELRCDismissedKakamega ELRC Appeal No 20 of 2023 (Memorandum of Appeal dated July 24, 2021)· [2023] KEELRC 1968 (KLR)

West Kenya Sugar Co Ltd v Joshua (Employment and Labour Relations Appeal E008 of 2021) [2023] KEELRC 1968 (KLR)

Employment and Labour Relations Court of Kenya
27 July 2023
3,157 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a judgment of the Employment and Labour Relations Court at Kakamega (Jemimah Keli, J) allowing disposal of an appeal by West Kenya Sugar Co Ltd against a ruling of Hon Mildred Munyekenye (SRM) delivered on July 14, 2021 in Webuye PMCC No 212 of 2017, in which the trial magistrate declined a preliminary objection and held she had jurisdiction over a workplace injury claim. The appellant argued that under sections 16, 23 and 52(53) of the Work Injury Benefits Act, work injury claims must in the first instance be lodged with the Director of Occupational Safety and Health Services, relying on the Supreme Court decision in Law Society of Kenya v Attorney General & COTU. The respondent filed no submissions. The court first noted the appeal mirrored Kakamega ELRC Appeal No 20 of 2023 (West Kenya Sugar Ltd v George Mukubwa) and adopted that judgment. It then analysed the Chief Justice's Practice Directions published in Gazette Notice No 5476 on April 28, 2023, which direct that all work injury claims filed after the commencement of WIBA but before the Supreme Court decision of December 3, 2019 shall proceed to conclusion before the ELRC or Magistrates' Courts where they were instituted. The court held the directions pass muster under the doctrine of necessity, promote access to justice under Articles 48 and 159(2)(d), and cause the appellant no tangible prejudice. Finding the magistrates' courts now clothed with jurisdiction over such pending claims, the court dismissed the appeal and, tempering justice with mercy, ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction of magistrates' courts over work injury claims filed post-WIBA but before the Supreme Court decision of December 3, 2019

Holding

The trial magistrate had jurisdiction; the Chief Justice's Practice Directions of April 28, 2023 grant jurisdiction to magistrates over pending WIBA claims instituted before the Supreme Court decision, and the appeal fails

Reasoning

The court had earlier found the appeal similar to Kakamega ELRC Appeal No 20 of 2023 West Kenya Sugar Ltd v George Mukubwa and adopted that judgment. It then analysed the Practice Directions issued by the Chief Justice under the Employment and Labour Relations Act and constitutional provisions, held they pass muster by the doctrine of necessity, promote access to justice under Article 48 and substantive justice under Article 159(2)(d), found no tangible prejudice to the appellant, and concluded the magistrates are clothed with jurisdiction.

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02

Validity and authority of the Chief Justice's Practice Directions on pending WIBA claims

Holding

The Practice Directions pass muster by the doctrine of necessity and promote access to justice for litigants caught up with WIBA cases filed in court between the High Court decision and the Supreme Court decision

Reasoning

The court traced the Chief Justice's rule-making authority under section 27 of the Employment and Labour Relations Act and Articles 159 and 48 of the Constitution, noted divergent positions courts had taken on legitimate expectation, found no tangible prejudice to the appellant (magistrates having capacity equal to or better than the Director to assess damages), and upheld the directions under the doctrine of necessity.

p. 6

Legal principles established

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  • Magistrates' courts are clothed with jurisdiction to hear and determine work injury and disease claims filed before the Supreme Court decision in Law Society of Kenya v Attorney General & Another delivered on December 3, 2019, pursuant to the Chief Justice's Practice Directions vide Gazette Notice No 5476 of April 28, 2023

Court orders

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  1. 1.The appeal dated July 24, 2021 is dismissed for the reason of the Chief Justice practice directions vide Gazette Notice No 5476 issued on April 28, 2023 to the effect that WIBA matters filed before the delivery of the Supreme Court decision on December 3, 2019 be heard and determined by the magistrates
  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)
  • Constitution of KenyaArticles 159(1)-(2), 161(2)(a), 48
  • Judicature Actsection 10
  • Judicial Service Actsection 5(1) and 2(c)
  • Employment and Labour Relations Court Act
  • Employment and Labour Relations Act, 2011sections 27, 29(3) and (4)

Cases cited (7)

  • Hon Attorney General v Law Society of Kenya and Central Organization of Trade Unions
    Civil Appeal No 133 of 2021
  • Law Society of Kenya v Hon Attorney General and Central Organization of Trade Unions (K)
    Supreme Court Appeal No 4 of 2019
  • Selle & Another v Associated Motor Boat Co Ltd & Others
    (1948) EA 123
  • West Kenya Sugar Ltd v Tito Lucheli Tangale
    Kisumu ELRC Appeal No 4 of 2019
  • West Kenya Sugar Ltd v George Mukubwa
    Kakamega ELRC Appeal No 20 of 2023
  • Law Society of Kenya v. Attorney General & Another
    [2009] eKLR
  • 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)
On appeal from
Principal Magistrate's Court, Webuye (PMCC No 212 of 2017)
Webuye PMCC No 212 of 2017
Jurisdiction invoked
Appellate jurisdiction over subordinate court under Employment and Labour Relations Court framework; Article 159 and Article 48 of the Constitution of Kenya considered

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 Joshua (Employment and Labour Relations Appeal E008 of 2021) [2023] KEELRC 1968 (KLR)", Case Analysis (2023). Kakamega ELRC Appeal No 20 of 2023 (Memorandum of Appeal dated July 24, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1968/eng@2023-07-27

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