[2024] KEELRC 1130 (KLR)
The court held that, although the Supreme Court decision in Law Society of Kenya v Attorney General & another [2019] eKLR required work injury claims to be processed under WIBA, subsequent directions by the Chief Justice (Gazette Notice No 5476 of 28th April 2023) clarified that claims filed at the Employment and...
Source-derived case information.
- Citation
- [2024] KEELRC 1130 (KLR)
- Parties
- Applicant: Robert Kinuthia Karanja (Deceased); Respondent: Salome Wangui Ndung’u; Respondent: Leah Wanjiru Ndung’u; Respondent: Caroline Wangui Ndung’u; Respondent: Kimuchu Wholesalers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 289 of 2020
- Procedural Posture
- Cause / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Respondents' objection overruled; application to strike out suit declined with costs in the cause.
- Judges
- L Ndolo
- Legal Topics
- Work Injury Benefits, Jurisdiction of Court, Transfer of Suit, Abatement of Claim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Kinuthia Karanja (Deceased)
Applicant
Salome Wangui Ndung’u
Respondent
Leah Wanjiru Ndung’u
Respondent
Caroline Wangui Ndung’u
Respondent
Kimuchu Wholesalers
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear and determine the suit given the provisions of the Work Injury Benefits Act (WIBA).
- 2 Whether the claim should be struck out or allowed to proceed in light of the Supreme Court decision and subsequent directions by the Chief Justice.
- 3 Whether the pending application for substitution of the deceased claimant affects the abatement of the claim.
Ratio Decidendi
The court held that, although the Supreme Court decision in Law Society of Kenya v Attorney General & another [2019] eKLR required work injury claims to be processed under WIBA, subsequent directions by the Chief Justice (Gazette Notice No 5476 of 28th April 2023) clarified that claims filed at the Employment and Labour Relations Court after WIBA's commencement but before the Supreme Court decision should proceed to conclusion before the court. Additionally, the court considered the risk of abatement due to the claimant's death and the pending application for substitution. To prevent grave injustice, the court overruled the respondents' objection and declined the application to strike out...
Court Disposition
Respondents' objection overruled; application to strike out suit declined with costs in the cause.
Orders
- The respondents' application dated 10th December 2021 is declined.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
Karanja (Deceased) v Ndung’u & 3 others (Cause 289 of 2020) [2024] KEELRC 1130 (KLR) (2 May 2024) (Ruling)
Neutral citation: [2024] KEELRC 1130 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 289 of 2020
L Ndolo, J
May 2, 2024
FORMERLY KIAMBU HCCC NO 17 OF 2018
Between
Robert Kinuthia Karanja (Deceased)
Claimant
and
Salome Wangui Ndung’u
1st Respondent
Leah Wanjiru Ndung’u
2nd Respondent
Caroline Wangui Ndung’u
3rd Respondent
Kimuchu Wholesalers
4th Respondent
Ruling
1. This claim was initially filed at the High Court in Kiambu as HCCC No 17 of 2018. By an order made by Meoli J on 15th June 2020, it was transferred to this Court for hearing and disposal.
2. Subsequent to this, the Respondents filed a Notice of Motion dated 10th December 2021, seeking to have the suit struck out, on the ground that the Court lacks jurisdiction to entertain it.
3. The Motion is supported by an affidavit sworn by the 1st Respondent, Salome Wangui Ndung’u and is based on the grounds that:a.This Court does not have primary jurisdiction to hear and determine this suit;b.The claim by the Claimant is before the Director of Occupational Safety and Health Services under the Work Injury Benefits Act (WIBA).
4. In her affidavit in support of the Motion, the 1st Respondent depones that steps had been taken to report the accident to the Director of Occupational Safety and Health Services. She adds that the claim has been assessed and is awaiting settlement by the underwriter.
5. In response to the Motion, a replying affidavit sworn by Francis Karanja Githaku has been filed. In this regard, the Court takes notice that the primary Claimant, Robert Kinuthia Karanja is now deceased and an application for substitution dated 22nd November 2023 is pending determination before the Court.
6. In their objection, the Respondents rely on the Supreme Court decision in Law Society of Kenya v Attorney General & another [2019] eKLR where it was held that work injury claims arising after enactment of WIBA were to be processed within the procedure set out in the Act.
7. There have however been new developments in this area. Specifically, by Gazette Notice No 5476 dated 28th April 2023, the Hon Chief Justice issued directions directing that all claims with respect to compensation for work related injuries and diseases filed at the Employment and Labour Relations Court, after commencement of WIBA but before the Supreme Court decision, shall proceed to conclusion before the Court.
8. The Court also notes that the primary Claimant having passed on and with the application for substitution still pending determination, there is a real danger of the claim abetting, which would occasion grave injustice.
9. In the circumstances, the Respondents’ objection is overruled and their application dated 10th December 2021 is therefore declined with costs in the cause.
10. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF MAY 2024LINNET NDOLOJUDGEAppearance:Ms. Kerubo h/b for Mr. Arati for the ClaimantMr. Baiya for the Respondents