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ELRCStruck OutPetition dated 18th April, 2023· [2024] KEELRC 658 (KLR)

Kurui v Aquila Development Company Ltd (Employment and Labour Relations Petition E007 of 2023) [2024] KEELRC 658 (KLR)

Employment and Labour Relations Court
19 March 2024
HWHellen Wasilwa
6,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker's unfair dismissal and injury claim was struck out because he filed it in the wrong court and skipped the required work injury reporting process.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from 1st April 2012 as a construction maintenance worker, sustained a left malleolus joint injury at work on 15th June 2020. He alleged that despite medical advice for extended rest and lighter duties, the Respondent forced him back to work, stopped his salary from September 2020, denied him entry to the workplace, refused to fill DOSH forms under WIBA, and indirectly and discriminatorily terminated his employment without hearing. He sought declarations of unfair termination, discrimination and constitutional violations under Articles 27, 28, 41, 47 and 50, plus a certificate of service, 12 months' salary as damages, general damages, terminal benefits, and an order compelling the WIBA compensatory process. The Respondent raised a preliminary objection that the petition disclosed no constitutional issue, offended the doctrine of constitutional avoidance, and was outside the ELRC's jurisdiction since the Petitioner earned Kshs 12,938 monthly, below the Kshs 80,000 threshold in Gazette Notice No 6024. It maintained the Petitioner was never terminated, absconded, and failed to supply medical documents for DOSH referral. Wasilwa J agreed that the petition raised no proper constitutional issues, being an ordinary employer-employee dispute sounding in unfair termination and work injury compensation. The court held WIBA provides a self-contained roadmap, including the employee's right under section 22(5) to report the accident directly to the Director, which the Petitioner ignored, rendering the petition an abuse of process. The claim was also found to belong in the subordinate court given the salary threshold. The petition was struck out with no order of costs.

Key legal issues

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01

Whether the Petition raised constitutional issues attracting the court's jurisdiction

Holding

The petition raised no proper constitutional issues; it is an ordinary employer-employee dispute concerning unfair termination and work injury compensation, and the doctrine of constitutional avoidance applies

Reasoning

The court found the only issues raised related to unfair termination and failure to pay injury compensation, matters fully addressed by statute. It declined to delve into matters that can be handled under laid down parallel provisions of law, applying the doctrine of constitutional avoidance urged by the Respondent.

p. 11
02

Whether the court had jurisdiction given the Petitioner's gross monthly salary of Kshs 12,938

Holding

The court lacked jurisdiction; the claim should have been instituted in the subordinate court under Gazette Notice No 6024 which grants subordinate courts jurisdiction over employment disputes where gross monthly salary does not exceed Kshs 80,000

Reasoning

The Petitioner earned Kshs 12,938 per month, below the Kshs 80,000 threshold in Gazette Notice No 6024 dated 22/6/2018. The court found the Petitioner came before it prematurely in the wrong forum and directed that the statutory process be followed instead.

p. 12
03

Whether the Respondent violated the Petitioner's right to WIBA compensation by failing to fill the DOSH forms

Holding

No; WIBA provides an alternative roadmap whereby the employee may report the accident to the Director directly under section 22(5), which the Petitioner failed to do, making the petition an abuse of process

Reasoning

The court held that failure by the employer to fill the compensation form does not leave the employee without remedy: section 22(5) of WIBA permits the employee to report the accident to the Director at any stage. The Petitioner never utilised this avenue and instead filed a petition.

p. 11

Legal principles established

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  • Where an employer fails to report a work injury to the Director under WIBA, the employee may at any stage report the occupational accident or disease to the Director directly under section 22(5) of WIBA, and a petition filed without following that statutory process is an abuse of the court process
  • Employment disputes where the employee's gross monthly salary does not exceed Kshs 80,000/- fall within the jurisdiction of the subordinate court per Gazette Notice No 6024 and should not be instituted before the ELRC

Court orders

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  1. 1.The claim for wrongful dismissal being in the wrong forum is struck out forthwith
  2. 2.No order of costs
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution; challenged on Gazette Notice No 6024 (Vol CXX No 74) dated 22nd June 2018 under the Employment and Labour Relations Court Act

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, "Kurui v Aquila Development Company Ltd (Employment and Labour Relations Petition E007 of 2023) [2024] KEELRC 658 (KLR)", Case Analysis (2024). Petition dated 18th April, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/658/eng@2024-03-19

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