Wafula v Robamach Building & Construction Co. Ltd & another (Petition E009 of 2023) [2023] KEELRC 3477 (KLR)
The bottom line
#Kenya's Employment Court dismissed a work-injury constitutional petition, confirming injured workers must first pursue claims through WIBA before the Director of Occupational Safety and Health Services.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional petition threshold (Anarita Karimi Njeru)
The Petition met the threshold; it identified the rights under Articles 41 and 47 said to have been violated with reasonable precision.
The Respondents argued the Petition failed to specify the constitutional provisions violated, relying on Anarita Karimi Njeru and Mumo Matemu. The court found the Petitioner had set out with reasonable precision the violations of fair remuneration, reasonable working conditions and fair administrative action, satisfying the required link between the party, the provisions and the alleged contravention.
Whether the court has jurisdiction to entertain the work-injury Petition
The court lacks jurisdiction; the claim falls under WIBA and should have been pursued and concluded before the Director of Occupational Safety and Health Services, with any appeal under Section 52 of WIBA.
Relying on the Chief Justice's Practice Direction after Law Society of Kenya v Attorney General (2019) and the Owners of Motor Vessel 'Lilian S' principle, the court held that WIBA is the appropriate legislation for work injury claims. The Petitioner's failure to confirm the outcome of his claim before the Director meant he could not bypass the statutory scheme via a constitutional petition; the court may only supervise the Director, not usurp his powers.
Legal principles established
#- A party invoking Article 22 must set out with reasonable precision the provisions said to be infringed and the manner of infringement (Anarita Karimi Njeru threshold)
- Where the Director fails to perform obligations under WIBA, the remedy lies in the Director's statutory scheme and the court's supervisory powers, not by way of constitutional petition usurping the Director's mandate
- The ELRC's jurisdiction over work injury matters is subject to the WIBA regime, with appeals to the Industrial Court lying under Section 52 after the Director's decision
Court orders
#- 1.The Petition dated 23rd May 2023 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Act No. 20 of 2011, Section 12; Work Injury Benefits Act No. 13 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Robamach Building & Construction Co. Ltd & another (Petition E009 of 2023) [2023] KEELRC 3477 (KLR)", Case Analysis (2023). Petition dated 23rd May 2023 (ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3477/eng@2023-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.