Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 2930 (KLR)

Kimani & another v Safaricom Kenya PLC Limited (Cause E535 of 2020) [2023] KEELRC 2930 (KLR)

Employment and Labour Relations Court
8 November 2023
1,594 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki Wa Makau, J) dated 8th November 2023, determining a Notice of Preliminary Objection dated 25th September 2023 raised by the Respondent/Applicant against the Claimants' Motion application dated 21st August 2023, which sought review of the Court's Ruling of 21st April 2021 striking out their suit. The Respondent argued that the Court lacked jurisdiction because the Claimants had not appealed the 21st April 2021 decision, had instead pursued work injury claims before the Director of Occupational Health (DOSH), whose dismissal and objection left an appeal pending under section 52 of the Work Injury Benefits Act 2007; that pursuing the same cause in different fora simultaneously violated the exhaustion doctrine under section 90 of the Fair Administrative Action Act and the sub judice principle; and that in any event the application failed the Rule 33 review test and was inordinately delayed. The Claimants filed no submissions. The Court agreed, holding that the exhaustion doctrine and sub judice principle were in play, that a party must approach the Court under the proper legal provisions, and that the Claimants had failed to prove any basis for review under Rule 33. The application was struck out with costs to the Respondent/Applicant. All authorities were cited by the Respondent; none was expressly adopted as binding beyond the Court's endorsement of the submissions.

Key legal issues

#
01

Jurisdiction and exhaustion of statutory remedies

Holding

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

Reasoning

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.

p. 4
02

Failure to use the correct procedure

Holding

Even if remedies were exhausted, the proper route was an appeal under section 52 of WIBA, not a review of the striking-out order

Reasoning

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.

p. 3
03

Rule 33 review threshold

Holding

The Claimants failed to demonstrate error apparent on the face of the record, new and important matter, or sufficient reason to warrant review

Reasoning

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.

p. 4

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. 1.The Claimants' application dated 21st August 2023 is struck out
  2. 2.Costs of the application awarded to the Respondent/Applicant

Authorities

#

Legislation

  • Work Injury Benefits Act, 2007section 51
  • Work Injury Benefits Act, 2007section 52
  • Work Injury Benefits Act, 2007section 16
  • Fair Administration of Action Actsection 90
  • Employment & Labour Relations Court (Procedure) Rules 2016Rule 33

Cases cited (6)

  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
  • Alfred Kiprono Kirui v James Finlay (K) Limited
    [2020] eKLR
  • Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)
    [2019] eKLR
  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited
    [1989] KLR 1
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.