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ELRCPartially AllowedELRC Appeal No. 86 of 2023 (formally NBI HCCA No. E202 of 2021) consolidated with ELRC Appeal No. E034 of 2021· [2024] KEELRC 1169 (KLR)

Onany v Tononoka Rolling Mills Ltd (Employment and Labour Relations Appeal E034 of 2021) [2024] KEELRC 1169 (KLR)

Employment and Labour Relations Court
26 April 2024
OKOcharo Kebira
3,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed workers can't sue again in court after being compensated under WIBA, but suits filed during a key legal window were valid.

What this practically means

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Executive summary

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This judgment of Ocharo Kebira J disposes of two consolidated appeals (No. 86 of 2023 and E034 of 2021) against a ruling of the trial Magistrate of 19th March 2022 in Milimani CMCC No. 2778 of 2017, a common law claim for workplace injuries sustained by the Plaintiff on 4th February 2015 while employed by the Defendant as a Moulding Machine Operator. The court framed two questions: whether the suit was properly filed in the magistrates' court in the period between Justice J.B. Ojwang's decision of 4th March 2009 declaring section 16 of WIBA unconstitutional and the Court of Appeal's reversal of 17th November 2017 (upheld by the Supreme Court); and whether the Plaintiff's claim had already been resolved and compensated under WIBA. On the first question, the court held that absent a stay, the High Court declaration remained valid and binding until reversed, so suits filed in the interregnum were properly lodged in magistrates' courts; ground 1 of the Plaintiff's appeal succeeded. On the second, unaddressed by the trial Magistrate, the court found that the Plaintiff had initiated WIBA proceedings, was assessed, and was paid KShs. 750,720/-, and that his failure to controvert this amounted to an admission extinguishing the cause of action. Accordingly, the court struck out the primary suit; the Defendant's appeal succeeded partially. Each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of magistrates' courts over work injury claims filed between the Ojwang J decision and the Court of Appeal reversal

Holding

The primary suit was properly filed; the trial Magistrate erred in holding he lacked jurisdiction

Reasoning

The High Court decision of 4th March 2009 declared section 16 of WIBA and related provisions unconstitutional. There being no stay pending appeal, that decision remained valid and binding on all persons until overturned by the Court of Appeal on 17th November 2017. The suit, filed on 25th April 2017, fell squarely within the interregnum, and in obedience to the rule of law and the legitimate expectation generated by the judgment, could properly be lodged in the magistrates' courts.

p. 6
02

Whether the Plaintiff's claim had already been resolved and compensated under the WIBA mechanism

Holding

The Plaintiff engaged the WIBA mechanism, was assessed and compensated, extinguishing his cause of action; the suit ought to be struck out

Reasoning

The Plaintiff never rebutted the assertion that he initiated WIBA proceedings and was paid KShs. 750,720/-. His silence in the replying affidavit, the reply to the amended defence, and in the appeals amounted to an admission. The documentary record (pages 87–91 of the Record of Appeal) confirmed the compensation. The trial Magistrate failed to address this pivotal point; had he done so, he would have struck out the suit, which this court now does.

p. 6

Legal principles established

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  • A High Court declaration of unconstitutionality remains valid and binding until set aside on appeal, absent a stay of its effect
  • Suits filed in magistrates' courts between the High Court decision of 4th March 2009 and the Court of Appeal decision of 17th November 2017 were properly initiated notwithstanding WIBA section 16
  • A party's failure to respond to an assertion of compensation under WIBA equates to an admission of the initiation, assessment and payment of that compensation
  • Where a claimant has been assessed and compensated under WIBA, the cause of action is extinguished and the suit should be struck out

Court orders

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  1. 1.Appeal No. E034 of 2021 succeeds on ground 1 (the trial Magistrate erred in holding that he lacked jurisdiction)
  2. 2.The primary suit Milimani CMCC No. 2778 of 2017 is struck out
  3. 3.Appeal No. E086 of 2023 succeeds partially
  4. 4.Each party shall bear its own costs

Authorities

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Legislation

  • Work Injury Benefits Act, 2007Section 16
  • Work Injury Benefits Act, 2007Section 23
  • Work Injury Benefits Act, 2007Part IV
  • Work Injury Benefits Act, 2007Section 52(2)
  • Work Injury Benefits Act, 2007Sections 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1), (2) and (3), 58(2)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Former Constitution of KenyaSections 60, 75(1), 77(1), 77(9), 77(10), 80(1), 82(1), 84
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice Rules, 2006Rule 12
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Law Society of Kenya v Honourable Attorney General & COTU, Nairobi Petition No. 185 of 2008
  • Civil Appeal No. 133 of 2011
  • Longonot Horticulture Ltd v James Wakaba Maina
    (2019) eKLR
  • Said Mohamed v Diamond Industries Ltd
    (2018) eKLR
  • Paul Nganga v Sinopec International Petroleum Services Corporation Ltd
    Nakuru ELRC Appeal No. 57 of 2007
  • West Kenya Sugar Co. Ltd v Tito Lucheti Tangale, Kisumu ELRC Appeal No. 4 of 2019
  • Court of Appeal No. E130 of 2021 (stay of Kisumu ELRCA 4 of 2019)
On appeal from
Chief Magistrate's Court, Milimani (Nairobi)
Milimani CMCC No. 2778 of 2017
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act, 2007 (appeal to the ELRC from the Director/_magisterial proceedings)

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, "Onany v Tononoka Rolling Mills Ltd (Employment and Labour Relations Appeal E034 of 2021) [2024] KEELRC 1169 (KLR)", Case Analysis (2024). ELRC Appeal No. 86 of 2023 (formally NBI HCCA No. E202 of 2021) consolidated with ELRC Appeal No. E034 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1169/eng@2024-04-26

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