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ELRCAllowedNot stated in the judgment (Memorandum of Appeal filed 14 December 2023)· [2024] KEELRC 1616 (KLR)

Obare v Simakon Building & Civil Engineer Contractor (Appeal E067 of 2023) [2024] KEELRC 1616 (KLR)

Employment and Labour Relations Court
26 June 2024
RSRadido Stephen
1,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that workplace injury claims filed in Magistrates' Courts between 2008 and 2019 were validly filed, reviving a worker's compensation case.

What this practically means

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Executive summary

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The Appellant sued the Respondent in the Chief Magistrates Court at Kisumu on 19 October 2016 for breach of statutory duty/negligence arising from a workplace injury sustained on 15 January 2015 under the Work Injury Benefits Act (WIBA). On 25 April 2023, when the suit came up for hearing, the Respondent orally raised the question of jurisdiction, and the Senior Principal Magistrate struck out the suit, holding the court had no jurisdiction over WIBA matters, with no order as to costs. A Motion dated 29 May 2023 seeking reinstatement was dismissed on 22 November 2023. The Appellant appealed to the Employment and Labour Relations Court on three grounds, principally that the trial magistrate erred in law and fact and ignored the Chief Justice's practice directions on access to justice. On appeal, the Respondent argued the appeal was incompetent because the Motion invoked wrong procedural provisions and sought to make the magistrate, now functus officio, sit as an appellate court. The Court rejected both objections, holding that no prejudice was caused and the functus officio point was immaterial absent a cross-appeal. Applying its earlier decision in West Kenya Sugar Co Ltd v Tito Lucheli Tangale, the Court held that judge-declared law remains valid until set aside, and since the claim was lodged in 2016 when courts could entertain WIBA claims, the magistrate erred in declining jurisdiction. The Court set aside the Ruling of 22 November 2023, allowed the Motion of 29 May 2023, and ordered the Cause reallocated to another magistrate for hearing, with costs of the appeal to the Appellant.

Key legal issues

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01

Competence of the appeal based on the wrong procedural provisions invoked in the Motion

Holding

The appeal was not incompetent because the wrong invocation of procedure caused no prejudice to the substantive determination of the Motion.

Reasoning

The Respondent argued the Motion was brought under wrong or inapplicable provisions of procedural law. The Court held the Respondent knew the nature of the application it faced and competently defended it, so the procedural misstep did not prejudice the substantive hearing and determination. It also found the functus officio argument immaterial since there was no Cross-Appeal.

p. 2
02

Jurisdiction of the subordinate court over WIBA claims filed before the Chief Justice's Directions of 28 April 2023

Holding

The Senior Principal Magistrate erred in law and fact in declining jurisdiction over the WIBA claim filed on 19 October 2016, when the prevailing law allowed such claims before the courts.

Reasoning

The claim was lodged on 19 October 2016, when, following the High Court's stay and declaration of inconsistency of the ouster provision, parties could approach the courts on WIBA claims. Relying on West Kenya Sugar Co Ltd v Tito Lucheli Tangale, judge-declared law remains valid until set aside, so claims underpinned by it were validly within the courts' jurisdiction. The Chief Justice's Directions of 28 April 2023 postdated the decline of jurisdiction.

p. 3

Legal principles established

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  • Until set aside or vacated, a court order, including judge-made or judge-declared law, is valid and litigants may order their affairs on the strength of the declared law.
  • Claims lodged with the courts from 22 May 2008 to 3 December 2019 underpinned by judge-made or judge-declared law were validly within the jurisdiction of the courts.
  • Invocation of wrong procedures by a party does not invalidate proceedings where no prejudice is caused to the substantive hearing and determination.

Court orders

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  1. 1.The Ruling delivered on 22 November 2023 is set aside and/or vacated
  2. 2.An order allowing the Motion dated 29 May 2023 is substituted therefor
  3. 3.Kisumu Chief Magistrates Court Cause No. 548 of 2016 be placed before the Chief Magistrate for reallocation to another Magistrate other than Honourable Cheruiyot for hearing and determination
  4. 4.The Appellant to have costs of the Appeal
On appeal from
Senior Principal Magistrates Court (Kisumu Chief Magistrates Court)
Kisumu Chief Magistrates Court Cause No. 548 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's Ruling on jurisdiction over Work Injury Benefits Act claims

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, "Obare v Simakon Building & Civil Engineer Contractor (Appeal E067 of 2023) [2024] KEELRC 1616 (KLR)", Case Analysis (2024). Not stated in the judgment (Memorandum of Appeal filed 14 December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1616/eng@2024-06-26

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