Nyamwaya (Suing on Her own Behalf and On behalf of the Estate of the Late Samuel Onyancha Kinanga (Deceased)) v Dock Workers Union (Miscellaneous Application 16 of 2024) [2025] KEELRC 2407 (KLR)

Two schools of thought existed on whether the ELRC has original or only appellate jurisdiction over the Director's decisions. The Court adopted the view that the jurisdictional gap cannot leave successful parties without a remedy, as that would defeat access to justice. Section 12 of the Employment and Labour Relations Act grants broad jurisdiction, and Rule 69 of the 2024 Procedure Rules now expressly provides for adoption of awards and decisions from Alternative Justice Systems. The Court of Appeal in Charles v Cheto affirmed this position.

The Court found the earlier application was struck out because the certificate of dependency had not been obtained, rendering it premature. The Court had referred the parties back to the Director to comply with sections 6 and 34 of WIBA, but it did not set aside the Director's decision or order fresh inquiries. Once the certificate of dependency was secured, filing a fresh application was the correct course rather than reviving the struck-out application.

The Respondent alleged it was a stranger to the Director's proceedings, that the Director exceeded his mandate, and ignored the earlier ruling. The Court held these matters fall outside an adoption application; the Respondent's remedy, if any, is a judicial review application. The Respondent also never appealed the Director's award within the prescribed 90 days, leaving the award intact and enforceable.