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ELRCDismissedApplication dated 6th February 2024· [2024] KEELRC 2439 (KLR)

Abdi v Teachers Service Commission (Miscellaneous Application E027 of 2024) [2024] KEELRC 2439 (KLR)

Employment and Labour Relations Court
4 October 2024
436 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 ruled it cannot enforce DOSH work injury awards directly, leaving injured workers without a clear court route to collect.

What this practically means

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Executive summary

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The Applicant sought an order that the Employment and Labour Relations Court adopt as its judgment the award of the Director of Occupational Safety and Health (DOSH), dated 30th May 2023, by which he had been awarded Kshs. 4,838,400 for a work injury. The Court, per James Rika, J, declined the application for want of jurisdiction. Relying on its own earlier ruling in Lameck Nyakundi Anyona v. W.J.J. Kenya Construction Company Limited [2022] eKLR, the Court held that it has no original jurisdiction to adopt DOSH awards as its judgment. Section 52(2) of the Work Injury Benefits Act confers only appellate jurisdiction over appeals arising out of awards of the Director. The Court acknowledged that some of its own decisions had identified a lacuna in the enforcement mechanism for work injury awards and had assumed jurisdiction to bridge it, but held that Superior Court authority - the Supreme Court in Samuel Kamau Macharia and the Court of Appeal in Rift Valley Railways and Attorney-General v. Law Society of Kenya - establishes that jurisdiction is conferred only by the Constitution or statute, and that a court may not exercise jurisdiction it does not have in the interest of justice, to enable access to justice, or to fill a lacuna; such stepping-in amounts to judicial craft and innovation. Under the doctrine of competence-competence, a court that apprehends it lacks jurisdiction must not exercise illusory jurisdiction. The application was declined for want of jurisdiction, with no order on costs.

Key legal issues

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01

Whether the E&LRC can adopt a DOSH work injury award as its own judgment

Holding

The Court has no jurisdiction to adopt a DOSH award as its judgment; its only jurisdiction over such awards is appellate under Section 52(2) WIBA

Reasoning

Section 52(2) of the Work Injury Benefits Act confers appellate jurisdiction only over awards of the Director. Superior Court precedent holds that jurisdiction derives solely from the Constitution or statute, and courts may not assume jurisdiction as judicial craft and innovation to bridge a legislative lacuna in the enforcement of work injury awards, even where access to justice is at stake.

p. 1
02

Whether a court may assume jurisdiction in the interest of justice to fill a lacuna in enforcement mechanisms

Holding

It may not; doing so amounts to impermissible judicial craft and innovation

Reasoning

While some E&LRC decisions have acknowledged a lacuna in enforcing DOSH awards and assumed jurisdiction to bridge it, the Superior Courts' decisions rest on the principle that jurisdiction is everything and must be granted by the Constitution or statute. A court is not permitted to exercise jurisdiction it does not have in the interest of justice or access to justice, and there is no provision for the Court to step in to fill a legislative lacuna.

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Legal principles established

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  • Jurisdiction is conferred only by the Constitution or statute, and a court may not assume jurisdiction to fill a legislative lacuna, however desirable in the interest of justice or access to justice
  • The E&LRC has no original jurisdiction to adopt DOSH work injury awards as its judgment; its jurisdiction over such awards is appellate only
  • A court that apprehends it lacks jurisdiction must decline to exercise illusory jurisdiction

Court orders

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  1. 1.The Application dated 6th February 2024 is declined for want of jurisdiction
  2. 2.No order on the costs
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act (appellate jurisdiction only); absence of original jurisdiction to adopt DOSH awards

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, "Abdi v Teachers Service Commission (Miscellaneous Application E027 of 2024) [2024] KEELRC 2439 (KLR)", Case Analysis (2024). Application dated 6th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2439/eng@2024-10-04

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