[2021] KEELRC 1257 (KLR)
The court found that the preliminary objection raised by the respondents did not disclose grounds sufficient to dispose of the appeal without a hearing on the merits. The issues raised, including the applicability of sections 51 and 52 of the Work Injury Benefits Act and Rule 8 of the Employment and Labour Relations...
Source-derived case information.
- Citation
- [2021] KEELRC 1257 (KLR)
- Parties
- Appellant: Edwin Songoroh; Appellant: Edson Conveyors Limited; Respondent: Amony Koech Yatich; Respondent: Moran Auctioneers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Appeal E017 of 2021
- Procedural Posture
- Employment and Labour Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- B Ongaya
- Legal Topics
- Work Injury Benefits, Preliminary Objection, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Songoroh
Appellant
Edson Conveyors Limited
Appellant
Amony Koech Yatich
Respondent
Moran Auctioneers
Respondent
Procedural Posture
Employment and Labour Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondents is meritorious and capable of disposing of the appeal without a hearing on merits.
- 2 Whether the appeal is contrary to sections 51 and 52 of the Work Injury Benefits Act and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
Ratio Decidendi
The court found that the preliminary objection raised by the respondents did not disclose grounds sufficient to dispose of the appeal without a hearing on the merits. The issues raised, including the applicability of sections 51 and 52 of the Work Injury Benefits Act and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016, were not directly addressed in the ruling under appeal and should be considered at the full hearing. The court held that whether the remedies sought in the memorandum of appeal are available is a substantive issue for determination after hearing the appeal, not at the preliminary stage. Accordingly, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs in the cause.
- Parties to take steps towards expeditious hearing of the appeal on merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MALINDI
APPEAL NO. E017 OF 2021
(Being an appeal from the ruling and orders delivered by Hon. M.L Nabibya, PM, in Mombasa CMELRC No. E056 of 2020)
EDWIN SONGOROH..................................................1ST APPELLANT
EDSON CONVEYORS LIMITED................................2ND APPELLANT
- VERSUS -
AMONY KOECH YATICH.......................................1ST RESPONDENT
MORAN AUCTIONEERS.........................................2ND RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 16th July, 2021)
RULING
The Appellants have filed the memorandum of appeal on 24. 03. 2021 through Miller George & Gekonde Advocates for orders:
1) The ruling delivered and orders given in Mombasa CMELRC No. EO56 OF 2020 ON 18. 03. 2021 be set aside in their entirety and the matter be referred back to the Directorate, Occupational Safety and Health Services.
2) The attachment commenced vide Proclamation of Attachment of Moveable Property dated 27. 01. 2021 in Mombasa CMELRC No. EO56 OF 2020 ON 18. 03. 2021 against the Assets of the Appellant be unconditionally lifted.
3) The costs of the Appeal be paid by the respondents in any event.
The respondents have filed a notice of preliminary objection on 16. 06. 2021 that the appeal be dismissed with costs on the basis that:
1) The prayers sought in the appeal are contrary to the provisions of sections 51 and 52 of the Work Injury Benefits Act Cap. 236 Laws of Kenya.
2) The appeal has been filed contrary to provisions of Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
In conclusive submissions it is stated for the respondents thus, “19. In conclusion, Your Lordship, it is our submissions that the Appellants’ Appeal is devoid of merit as it seeks an order that cannot be granted by law. It seeks an order beyond the jurisdiction of the Director of Occupational Safety and Health Services and therefore must fail through the lenses of this preliminary objection…”
The Court has perused the respondents’ submissions and there is no mention of the alleged breach of Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The respondents have also submitted on provisions of sections 51 and 52 of the Work Injury Benefits Act, 2007 but which are not mentioned anywhere in the ruling now appealed against and which ruling appears to have been about an execution process.
The Court has considered the respondent’s submissions and fails to find that the preliminary objection as raised amounts to such matters that would make the appeal to collapse without being heard and determined on merits. The Court considers that any relevance of the provisions of the Work Injury Benefits Act, 2007 to the present appeal would be matters the respondent may wish to be considered at full hearing of the appeal if at all they have a bearing on the ruling appealed against. The Court finds that as submitted for the appellants, the preliminary objection lacks merits. Indeed, whether the remedy in the memorandum of appeal is available or not is a matter for determination after hearing the full appeal.
In conclusion the preliminary objection is hereby dismissed with costs in the cause and parties to take steps towards expeditious hearing of the appeal on merits.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT MOMBASA THIS FRIDAY 16TH JULY, 2021.
BYRAM ONGAYA
JUDGE