In the matter of an application for an order of mandamus by Grace Wanjiru Muhura (suing as dependant of the late Joseph Muhura Njuguna) v Respondent
The bottom line
#Kenya's High Court struck out a widow's work-injury compensation case because she should have appealed to the Employment and Labour Relations Court instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court has jurisdiction over a WIBA compensation dispute by way of judicial review
The High Court lacks jurisdiction; the applicant having lodged an objection under section 51 of WIBA was bound to appeal to the Employment and Labour Relations Court under section 52 if aggrieved by the Director's decision.
The applicant invoked the statutory objection process under section 51 of WIBA against the Director's assessment. Having done so, she could not institute parallel judicial review proceedings in the High Court seeking the same relief. The appellate route to the ELRC under section 52(2) was the proper forum, and section 12(1)(a) of the ELRC Act confers exclusive jurisdiction over employment disputes on the ELRC.
Whether judicial review lies where an adequate alternative statutory remedy exists
No; judicial review is a residual remedy available only where no other convenient, beneficial and effective remedy exists.
Relying on Foulkes' Administrative Law and authorities including General Medical Council v Spackman and R v Peterkin, ex Soni, the court held that where statute provides an appeal, the prerogative orders cannot be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere. The applicant had in fact embraced the statutory alternative process.
Whether the suit is res judicata due to prior criminal proceedings
The res judicata limb of the preliminary objection was not sustained; criminal and civil proceedings may run concurrently under section 193A of the Criminal Procedure Code.
The court held that the existence of criminal proceedings would not ordinarily bar civil proceedings, the two processes can run simultaneously under section 193A CPC, and the criminal proceedings relied on were neither exhibited nor was their fate disclosed. Judicial review being sui generis, the rationale of section 193A applies, subject to availability of review reliefs.
Legal principles established
#- Where a statute provides an appeal mechanism, judicial review cannot be used as an alternative form of appeal
- Concurrent criminal and civil proceedings are permissible and criminal proceedings do not bar civil proceedings under section 193A of the Criminal Procedure Code
- WIBA disputes fall within the exclusive jurisdiction of the Employment and Labour Relations Court
Court orders
#- 1.The respondent's preliminary objection is upheld
- 2.The applicant's suit is struck out
- 3.Parties to bear their respective costs
- Jurisdiction invoked
- Order 53 Rule 1 of the Civil Procedure Rules; section 8(2), (3) and (4) of the Law Reform Act cap 26
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In the matter of an application for an order of mandamus by Grace Wanjiru Muhura (suing as dependant of the late Joseph Muhura Njuguna) v Respondent", Case Analysis (2024). Application No E023 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.