[2023] KEELRC 2930 (KLR)

Kimani & another v Safaricom Kenya PLC Limited (Cause E535 of 2020) [2023] KEELRC 2930 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2930 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E535 of 2020

Nzioki wa Makau, J

November 8, 2023

Between

Jonathan Njuguna Kimani

1st Claimant

Nancy Vuzigwa Avire

2nd Claimant

and

Safaricom Kenya PLCLimited

Respondent

Ruling

1. In response to the Claimants’ Motion Application dated 21st August 2023, the Respondent/Applicant filed a Notice of Preliminary Objection dated 25th September 2023 on the grounds that the Claimant’s Application as drawn and filed is bad in law, incompetent, misconceived and an abuse of the process of the court. That after the suit herein was struck out on 21st April 2021, the Claimants did not appeal against the decision or otherwise and therefore their subject application is a roundabout attempt at appealing or otherwise challenging the decision of 21st April 2021. That again, after the suit was struck out, the Claimants instituted claims before the Director of Occupational Health (DOSH) for alleged work injury claims, which DOSH dismissed. That their subsequent objection to DOSH was also dismissed and they had not exhausted the appeal process provided for under section 52 of the Work Injury Benefits Act, 2007 (WIBA 2007). That in fact, an appeal was still pending before the DOSH.

2. Further, the Respondent/Applicant’s stance was that the Claimants are pursuing a cause on the same issue and arising from the same set of facts, in different fora at the same time, which they also indicated at paragraph 9 of their Supporting Affidavit. That the Claimants’ Application thus violates the doctrine of exhaustion of available remedies as provided under section 90 of the Fair Administration of Action Act. The Respondent/Applicant asserted that because of the foregoing reasons, this Honourable Court does not have the requisite jurisdiction to entertain the Application seeking review of the Court’s Ruling of 21st April 2021. In short, the Claimants’ Application dated 21st August 2023 should fail in limine.

3. According to the Respondent/Applicant, even if this Court had jurisdiction to entertain the Claimants’ Application dated 21st August 2023, the said Application has not met the test for review under Rule 33 of the Employment & Labour Relations Court (Procedure) Rules 2016 for the following reasons:a.The Claimants have not demonstrated existence of any error apparent on the face of record and their contention that there is an error apparent on the face of the record because the Court did not consider that they also had claims for alleged unfair termination, is untrue; the Court duly considered this issue at paragraph 7 of its Ruling of 21st April 2021, which ruling was not appealed against.b.The Claimants have not demonstrated: existence of any sufficient reason, discovery of new and important matter or evidence, some mistake or error apparent on the face of the record, and/or any clarification, to warrant issuance of the orders sought in their Application.

4. Moreover, the Respondent/Applicant noted that between the date the Ruling of this Court was delivered on 21st April 2021 and the filing of the Claimants’ Application on 21st August 2023, a period of over 2 years had passed. That assuming this Court had the jurisdiction to determine the Claimants’ Application in the first place, the same would be considered to have thus been inordinately delayed and the Claimants had not plausibly explained the reason for the inordinate delay. That the Claimants had not demonstrated sufficient cause or grounds upon which the Court can or should grant the orders sought in their Application, which should therefore be struck out with costs to the Respondent.

5. The Preliminary Objection was canvassed by way of written submissions.

Respondent/Applicant’s Submissions 6. The Respondent/Applicant submitted only on the issue of jurisdiction to determine the Claimants’ Application for review. It submitted that the objection and appeal processes are governed by sections 51 and 52 of the WIBA 2007, which provide as follows:51. Objections and appeals against decisions of the Director(1)Any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.(2)The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined.52. Director’s reply(1)The Director shall within fourteen days after the receipt of an objection in the prescribed form, give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision.(2)An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision. (Emphasis by Applicant)

7. The Respondent/Applicant submits that the letter dated 9th June 2023 (page 20 of the Claimants’ Exhibit) is unequivocal that an appeal lodged on 23rd September 2022 is pending before the DOSH. The Respondent/Applicant submitted that in the case of Law Society of Kenya v Attorney General & another [2019] eKLR, the Supreme Court upheld the constitutionality of the WIBA 2007 and stated as follows:“(61)... In doing so, a plain reading of Section 16 of the Act would reveal that its intention is not to limit access to courts but to create a statutory mechanism where any claim by an employee under the Act is subjected, initially, to a process of dispute resolution starting with an investigation and award by the Director aforesaid and thereafter, under Section 52 an appeal mechanism to the then Industrial Court. ......(64)The Director’s inquiries are also essentially preliminary investigations. Such mechanisms, set out by statute must be left to run their full course before a court intervenes. Not only does this simplify procedures to ensure that courts focus on substantive rather than procedural justice, but also potentially addresses the problem of backlog of cases, enhances access to justice, encourages expeditious disposal of disputes, and lowers the costs of accessing justice.” (Emphasis by Applicant)

8. That further in the case of Alfred Kiprono Kirui v James Finlay (K) Limited [2020] eKLR, the ELRC held that upon receipt of any complaint of work injury, the Director must address the same and make a decision thereof and that it is only then that an aggrieved party can move the court through an appeal. It was the Respondent/Applicant’s submission that the foregoing decisions are in accordance with the well settled principle of exhaustion of available statutory remedies before approaching the courts, recognised in a plethora of cases, such as in the decision of the Supreme Court in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR; and the Court of Appeal’s decision in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR.

9. The Applicant further argued that considering the appellate route was yet to be exhausted and was pending before the DOSH, granting the Claimants’ Application would violate not only the exhaustion principle but also the principle of sub judice. That even if the Claimants had exhausted the appeal procedure as required by WIBA (which it submitted they have not), the proper way to approach this Court would be by appeal against the decision of the DOSH under section 52 of WIBA 2007 and not through an application for review of the Court’s orders to strike out their initial suit. It relied on the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR, in which the Supreme Court held that it is trite law that a Court of law has to be moved under the correct provisions of the law. The Respondent/Applicant contended that in the absence of the proper method of approaching the Court, the Court cannot have any jurisdiction to grant any orders to the Claimants. In essence, the Respondent/Applicant urged the Court to find that it has no jurisdiction to determine the Claimants’ Application and to down its tools with respect to the matter, in line with the renowned case of Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited [1989] KLR 1. It concluded that having further demonstrated that the Claimants’ Application for review is unfounded in law, this Court should strike it out.

10. The Claimants/Respondents had not filed any submissions by the time of writing this Ruling. The Respondent/Applicant asserts there is an appeal pending before the Director DOSH. It is clear the exhaustion doctrine is in play as well as the principle of sub judice. Where a party moves the Court there is requirement that the party does so under the proper legal provisions. In this case, the Claimant seeks to review a decision of the court which was superceded by other action which included the claim before the Director DOSH. As such, having failed to prove there was basis to seek review in terms of Rule 33 of the Employment & Labour Relations Court (Procedure) Rules 2016, the application by the Claimant is misapprehended. The Respondent asserts there is no jurisdiction to determine the same on account of a pending appeal before the Director DOSH. I agree and as a result strike out the application with costs to the Respondent/Applicant.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF NOVEMBER 2023NZIOKI WA MAKAUJUDGE