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ELRCPartially AllowedBungoma Appeal No E041 of 2022· [2024] KEELRC 669 (KLR)

Simira v China Overseas Engineering Group Company (Employment and Labour Relations Appeal E041 of 2022) [2024] KEELRC 669 (KLR)

Employment and Labour Relations Court of Kenya at Kakamega
14 March 2024
4,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed Magistrates Courts can hear work injury claims filed between 2017 and 2019, reviving a worker's dismissed compensation suit.

What this practically means

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Executive summary

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The appellant, a casual labourer injured on 26th June 2017, sued the respondent in Busia CMCC No 79 of 2018 for general damages, costs and interest. The respondent filed a preliminary objection contending that jurisdiction over work injury claims lay with the Director of Occupational Safety and Health Services under WIBA. On 30th August 2022 Hon. L. Ambasi, Chief Magistrate, upheld the objection, struck out the suit, and applied the ruling to twelve sister files. The appellant appealed to the ELRC at Kakamega, seeking to set aside the ruling, reinstate the suits for hearing on merit, and obtain costs. The appeal was canvassed by written submissions. Framing two issues - whether the trial court erred in holding it lacked jurisdiction, and whether the appeal was merited - the court applied Selle v Associated Motor Boat Co. The court noted the suit was filed in April 2018, after the Court of Appeal's 2017 decision but before the Supreme Court's decision of 3rd December 2019 in Law Society of Kenya v Attorney General (Petition No 4 of 2019). It upheld the Chief Justice's Practice Directions gazetted on 28th April 2023, which direct that all such pending claims proceed to conclusion before the ELRC or Magistrates Courts, invoking the doctrine of necessity, Article 48 access to justice and Article 159(2)(d). It held the magistrate had jurisdiction. However, the ELRC, being only an appellate forum in work injury claims, could not itself determine liability and quantum. The appeal was allowed: the ruling and order of 30th August 2022 was set aside in its entirety, the suit was returned to the Magistrates Court for disposal on merit on liability and quantum, the judgment extends to the twelve sister files, and each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction over work injury claims filed after WIBA commencement but before the Supreme Court decision in Law Society of Kenya v Attorney General (Petition No 4 of 2019)

Holding

The Magistrates Court has jurisdiction over such pending claims by virtue of the Chief Justice's Practice Directions gazetted on 28th April 2023; the trial magistrate erred in striking out the suit for want of jurisdiction

Reasoning

The claim was filed on 4th April 2018, after the Court of Appeal's 2017 decision and before the Supreme Court's 2019 decision. The Chief Justice issued practice directions on 24th April 2023 directing that all such claims proceed to conclusion before the ELRC or Magistrates Courts. The court upheld the validity of the directions under the doctrine of necessity, holding they promote access to justice under Article 48 and that no prejudice would be suffered by the appellant. The magistrate therefore had jurisdiction.

p. 9
02

Whether the ELRC could determine liability and quantum itself

Holding

No - the ELRC lacks original jurisdiction over work injury claims and has only appellate jurisdiction; the matter was remitted to the Magistrates Court

Reasoning

Relying on Saidi Mohammed v Diamond Industries Ltd and the Supreme Court's holding against an appellate court assuming original jurisdiction, the court held that assessment of damages in work injury claims is the role of the Magistrates Court. Without a decision by the court of original jurisdiction, the ELRC could not proceed on liability and quantum, and remitted the suit.

p. 9

Legal principles established

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  • An appellate court that finds a trial court acted without jurisdiction cannot assume original jurisdiction over the matter but must remit it to the court clothed with jurisdiction
  • The Chief Justice's WIBA Practice Directions of April 2023 grant the Magistrates Courts jurisdiction to conclude work injury claims filed after commencement of WIBA but before the Supreme Court decision of 3rd December 2019

Court orders

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  1. 1.The appeal is upheld on the issue of jurisdiction; the Magistrates Court has jurisdiction in the instant case
  2. 2.The ruling and order of Hon. L. Ambasi, Chief Magistrate, delivered on 30/8/2022 upholding the Respondent's preliminary objection dated 23rd March 2022 in Busia CMCC No 79 of 2018, as applied to the sister files Busia CMCC Nos 76,77,80,81,82,83,86,87,88,89,90 and 91 all of 2018, is set aside in its entirety
  3. 3.The suit is returned to the Magistrates Court for disposal on merit on the issues of liability and quantum
  4. 4.The judgment applies in Busia CMCC Nos 76,77,80,81,82,83,86,87,88,89,90 and 91 all of 2018
  5. 5.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 159(2)(d), 159(2), 161(2)(a), 162(2)
  • Work Injury Benefits Act (WIBA), 2007Sections 16, 21, 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 ActSection 4
  • Employment and Labour Relations Act, 2011Sections 27(1)(a)-(d), 29(3) and (4)
  • Workmen's Compensation Act, Cap 236 (repealed)not specified

Cases cited (8)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    (1948) EA 123
  • West Kenya Sugar Ltd v Tito Lucheli Tangale
    Kisumu ELRC Appeal No 4 of 2019
  • Mulaku Chekata Luke v Timsales Limited
    (2021) eKLR
  • Law Society of Kenya v Attorney General & another
    Petition No 4 of 2019; [2019] eKLR
  • Law Society of Kenya v Attorney General & another
    (2009) eKLR (judgment dated 4th March 2009)
  • 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)
  • Ronald Litunya Omutiti v Orpower 4 Inc
    Nakuru ELRC No 12 of 2021
  • Saidi Mohammed v Diamond Industries Ltd
    (2018) eKLR
On appeal from
Chief Magistrate's Court, Busia
Busia CMCC No 79 of 2018
Jurisdiction invoked
Appeal from the Magistrates' Court to the Employment and Labour Relations Court; practice directions issued by the Chief Justice under Articles 159(2) and 161(2)(a) of the Constitution, section 10 of the Judicature Act and sections 5(1) and 2(c) of the Judicial Service 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, "Simira v China Overseas Engineering Group Company (Employment and Labour Relations Appeal E041 of 2022) [2024] KEELRC 669 (KLR)", Case Analysis (2024). Bungoma Appeal No E041 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/669/eng@2024-03-14

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