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ELRCPartially AllowedKakamega ELRC Appeal (from Kakamega Civil Suit No. 328 of 2016)· [2024] KEELRC 453 (KLR)

Chenje v Kibo & Allied Industries & another (Employment and Labour Relations Appeal 17 of 2023) [2024] KEELRC 453 (KLR)

Employment and Labour Relations Court
29 January 2024
4,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that magistrates can hear workplace injury claims filed before December 2019, reviving a worker's case for a fresh hearing.

What this practically means

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Executive summary

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The appellant appealed against the decision of H. Wandere, SPM, delivered on 19th October 2022 in Kakamega Civil Suit No. 328 of 2016, dismissing his workplace injury suit for want of jurisdiction on the basis of the Supreme Court's decision in Law Society of Kenya v Attorney General, Petition No. 4 of 2019, which vested work injury claims in the Director of Occupational Safety and Health Services under WIBA. The appellant contended that jurisdiction had not been raised by the defendants, that the suit predated the Supreme Court decision, and that the court erred in dismissing the suit and awarding costs. The court, guided by Selle v Associated Motor Boat Co, framed two issues: jurisdiction, and liability and quantum. It held that parties cannot confer jurisdiction by consent or conduct and that a court may raise jurisdiction on its own motion, following Samuel Kamau Macharia and Owners of Motor Vessel 'Lillian S'. It found the respondents' reliance on Saidi Mohammed v Diamond Industries unhelpful since that case relied on the 2017 Court of Appeal decision when the suit was already pending. Crucially, the court held that the Chief Justice's Practice Directions gazetted on 28th April 2023 (Kenya Gazette No. 5476) expressly grant magistrates jurisdiction over WIBA claims filed before the Supreme Court's 3rd December 2019 decision, and that the directions pass muster by doctrine of necessity to promote access to justice under Article 48. The appeal accordingly succeeded on jurisdiction. However, the ELRC, having only appellate jurisdiction in work injury claims, declined to determine liability and quantum itself and remitted the suit to the Magistrates Court. The trial court's judgment was set aside in its entirety and no costs were ordered in the appeal.

Key legal issues

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01

Jurisdiction of the Magistrates Court over work injury claims filed post-WIBA but before the Supreme Court decision in Law Society of Kenya v Attorney General

Holding

The Magistrates Court has jurisdiction over such pending claims by virtue of the Chief Justice Practice Directions; the appeal succeeds on jurisdiction

Reasoning

The suit was filed in 2016, before the Court of Appeal (2017) and Supreme Court (2019) decisions. The Chief Justice's Practice Directions gazetted on 28th April 2023 expressly grant magistrates jurisdiction over pending claims filed before 3rd December 2019. The court held the directions pass muster by doctrine of necessity to promote access to justice, and no prejudice would be suffered under Article 159(2)(d).

p. 8
02

Whether parties can confer jurisdiction by consent or conduct

Holding

No - jurisdiction flows from the Constitution or written law, and a court may raise jurisdiction sua sponte

Reasoning

Relying on Samuel Kamau Macharia and Owners of Motor Vessel Lillian S, the court held that parties' acceptance of jurisdiction in pleadings cannot clothe a court with jurisdiction it lacks, and the court may determine the question on its own motion at any stage.

p. 5
03

Whether the ELRC should decide liability and quantum

Holding

No - the ELRC has only appellate jurisdiction in work injury claims; the matter must be remitted to the Magistrates Court

Reasoning

Following Rika J in Saidi Mohammed v Diamond Industries and the Supreme Court's holding that an appellate court finding a trial court lacked jurisdiction cannot assume original jurisdiction, the court remitted liability and quantum to the Magistrates Court.

p. 9

Legal principles established

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  • Parties cannot confer jurisdiction on a court by acceptance or conduct; jurisdiction flows from the Constitution or written law or both
  • A court may raise the question of jurisdiction on its own motion and must decide it forthwith
  • An appellate court that finds a trial court acted without jurisdiction cannot assume original jurisdiction over the matter; it must remit it to the court clothed with jurisdiction
  • Pending WIBA claims filed after commencement of WIBA but before the Supreme Court decision of 3rd December 2019 proceed to conclusion before the ELRC or Magistrates' Courts

Court orders

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  1. 1.Appeal succeeds on the issue of jurisdiction; the Magistrates Court has jurisdiction in the instant case
  2. 2.Judgment and/or Decree of Hon. H. Wandere delivered on 19th October 2022 in Kakamega Civil Suit No. 328 of 2016 set aside in its entirety
  3. 3.Suit returned to the Magistrate Court for disposal on merit on the issue of liability and quantum
  4. 4.No costs in the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d), Articles 159(2) and 161(2)(a)
  • Work Injury Benefits Act (WIBA)sections 16, 23(1), 25(1) and (3), 52(1) and (2), 58(2)
  • Judicature Actsection 10
  • Judicial Service Actsections 5(1) and 2(c)
  • Employment and Labour Relations Court Act-
  • Employment and Labour Relations Actsections 27 and 29(3) and (4)
  • Workmen's Compensation Act, Cap 236 (repealed)-
  • Kenya Gazette No. 5476 - Practice Directions Relating To Pending Court Claims Regarding Compensation For Work Related Injuries And Diseases Instituted Prior To The Supreme Court Decision In Law Society of Kenya v Attorney General And Another, Petition No. 4 Of 2019-

Cases cited (8)

  • Law Society of Kenya v Attorney General and another, Petition No. 4 of 2019
    [2019] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • West Kenya Sugar Ltd v Tiyto Lucheli Tangale
    Kisumu ELRC Appeal No. 4 of 2019
  • Saidi Mohammed v Diamond Industries Limited
    (2018) eKLR
  • Owners of 'the Motor Vessel "Lillian S"' v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Attorney General v Law Society of Kenya
    Petition No. 15 of 2008 (High Court judgment dated 4th March 2009); Court of Appeal 2017 decision
  • 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
Magistrates Court at Kakamega
Kakamega Civil Suit No. 328 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over a decision of the Magistrates' Court; Employment and Labour Relations Court Act and Work Injury Benefits Act framework, including the Chief Justice Practice Directions (Kenya Gazette No. 5476, 28th April 2023)

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, "Chenje v Kibo & Allied Industries & another (Employment and Labour Relations Appeal 17 of 2023) [2024] KEELRC 453 (KLR)", Case Analysis (2024). Kakamega ELRC Appeal (from Kakamega Civil Suit No. 328 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/453/eng@2024-01-29

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