Kimani & another v Safaricom Kenya PLC Limited (Cause E535 of 2020) [2023] KEELRC 2930 (KLR)
The bottom line
#The Employment Court struck out a late review application because the claimants had to finish their statutory work-injury appeal first, and pay costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of statutory remedies
The Court lacked jurisdiction to entertain the review application because an appeal under section 52 of WIBA 2007 was still pending before the Director DOSH, and the exhaustion and sub judice principles applied
The Respondent showed that after the suit was struck out on 21st April 2021, the Claimants pursued work injury claims before DOSH, whose decision was objected to, with an appeal lodged on 23rd September 2022 still pending. Relying on WIBA's objection and appeal mechanism and Supreme Court authority upholding that scheme, the Court found the statutory process had to be exhausted and that the same issue was being pursued in parallel fora, offending exhaustion and sub judice. The Claimants filed no submissions.
Failure to use the correct procedure
Even if remedies were exhausted, the proper route was an appeal under section 52 of WIBA, not a review of the striking-out order
The Court endorsed the Respondent's submission, supported by Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, that a litigant must approach the Court under the correct provisions of the law. The Claimants chose to attack the 21st April 2021 ruling by way of review more than two years later without appealing it, which the Court treated as a misconceived roundabout attempt at challenging that unappealed decision.
Rule 33 review threshold
The Claimants failed to demonstrate error apparent on the face of the record, new and important matter, or sufficient reason to warrant review
The Respondent argued, and the Court accepted, that the 21st April 2021 Ruling had considered the unfair termination claims, and that the Claimants had shown no discovery of new evidence, mistake, or other Rule 33 ground. The over two-year delay between the Ruling and the application further undermined the application. On this basis the application was struck out.
Legal principles established
#- A party must move the Court under the proper legal provisions; where a statutory appellate route is pending, the Court lacks jurisdiction over a collateral review application
- The exhaustion doctrine requires statutory mechanisms to run their full course before a court intervenes (as applied from the Supreme Court's WIBA jurisprudence)
Court orders
#- 1.The Claimants' application dated 21st August 2023 is struck out
- 2.Costs of the application awarded to the Respondent/Applicant
- Jurisdiction invoked
- Article 162(2) jurisdiction of the ELRC, and section 90 of the Fair Administrative Action Act / Rule 33 of the ELRC (Procedure) Rules 2016 as invoked on the preliminary objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & another v Safaricom Kenya PLC Limited (Cause E535 of 2020) [2023] KEELRC 2930 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2930/eng@2023-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.