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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 2026 (KLR)

Kung’u v Board of National Health Insurance Fund; Ministry of Interior and National Administration & another (Interested Parties) (Cause 1006 of 2023) [2024] KEELRC 2026 (KLR)

Employment and Labour Relations Court
2 August 2024
JRJames Rika
694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that neither the Employment and Labour Relations Court nor the High Court can enforce a Director of Work Injury award.

What this practically means

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Executive summary

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The Claimant held an award of the Director of Work Injury dated 3rd March 2022 for Kshs. 1,371,600 arising from a work injury. By a Statement of Claim dated 17th November 2023, he asked the Employment and Labour Relations Court to adopt the award as its judgment. The Respondent and Interested Parties filed a Notice of Preliminary Objection dated 14th March 2024, contending that the Court lacked jurisdiction and that the Claim should be struck out. In his submissions the Claimant appeared to concede the lack of jurisdiction but proposed transfer of the Claim to the High Court. Relying on the Supreme Court's decision in Samuel Kama Macharia on jurisdiction being conferred by the Constitution or statute, the Court held that neither the E&LRC nor the High Court has jurisdiction under the Work Injury Benefits Act, 2007 to enforce awards of the Director. Citing Lameck Nyakundi Anyona and Attorney-General v. Law Society of Kenya, the Court found that Sections 51 and 52 of the Act create an appellate system with the E&LRC as the appellate forum, with no enforcement mechanism through the courts. The Court observed that the apparent procedural gap was a deliberate legislative choice by the social partners to keep courts and lawyers at arm's length from work injury claims. The Claim was declined for want of jurisdiction, the transfer proposal was rejected, no order on costs was made, and the file was closed.

Key legal issues

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01

Jurisdiction of the E&LRC to adopt awards of the Director of Work Injury

Holding

The Court lacks jurisdiction; its role under WIBA is appellate only and does not extend to enforcement of the Director's awards

Reasoning

Jurisdiction is conferred by the Constitution or statute. The Work Injury Benefits Act spells out its own procedure for making and paying awards and creates an appellate system through Sections 51 and 52, with the E&LRC as appellate forum. No provision confers enforcement jurisdiction on the E&LRC or the High Court, and the Act never mentions the High Court.

p. 2
02

Whether the Claim could be transferred to the High Court

Holding

The transfer proposal failed for want of legal foundation since the High Court has no enforcement jurisdiction under WIBA either

Reasoning

The Act makes no mention of the High Court anywhere, and no other written law conferring such jurisdiction was brought to the Court's attention. It would also be inconceivable for an award adopted by the High Court to remain appealable at the E&LRC.

p. 2
03

Rationale for the absence of an enforcement mechanism

Holding

The procedural gap was a deliberate legislative choice to keep courts and practitioners at arm's length from work injury claims

Reasoning

The social partners who authored the Act intended to protect the employer-employee relationship from ambulance chasers common in personal injury claims; the only judicial interaction permitted is appeal of the Director's awards at the E&LRC, and that interaction ends with the appellate procedure.

p. 2

Legal principles established

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  • Neither the E&LRC nor the High Court has jurisdiction to enforce awards of the Director of Work Injury; the E&LRC's jurisdiction under WIBA is appellate only

Court orders

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  1. 1.The Claim herein is declined for want of jurisdiction.
  2. 2.No order on the costs.
  3. 3.The file is closed.
Jurisdiction invoked
Jurisdiction under the Employment and Labour Relations Court's statutory mandate considered against the Work Injury Benefits Act, 2007; Court found no statutory jurisdiction to adopt/enforce awards of the Director of Work Injury

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, "Kung’u v Board of National Health Insurance Fund; Ministry of Interior and National Administration & another (Interested Parties) (Cause 1006 of 2023) [2024] KEELRC 2026 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2026/eng@2024-08-02

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