Saidi Mohamed v Diamond Industries Ltd [2018] KEELRC 2447 (KLR)
The bottom line
#A Kenyan worker injured on the job must first take the claim to the Director of Work Injury Benefits before the Employment and Labour Relations Court can hear it on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employment and Labour Relations Court has jurisdiction to hear and determine work injury claims
- 2.Whether the Claimant has come to Court under the correct procedure laid down in the Work Injury Benefits Act
Key legal issues
#Whether the E&LRC lacks jurisdiction over work injury claims
The objection that the E&LRC has no jurisdiction in work injury claims is misconceived; the Court has jurisdiction but only of an appellate nature
Work injury claims are employment and labour relations disputes. WIBA was part of the 2007/2008 labour laws intended to be administered by the Industrial Court and other labour institutions. Section 52(2) contemplated appeals from the Director of Work Injury Benefits to the Industrial Court. The Court of Appeal confirmed this scheme, so the Court's jurisdiction is secondary, not primary.
Effect of the invalidation of Section 16 WIBA and the Court of Appeal's 17 November 2017 decision
Section 16 barring damages actions was invalidated by the High Court, but the Court of Appeal restored most of WIBA, finding only Sections 7 and 10(4) unconstitutional
The High Court in Law Society of Kenya v Attorney General invalidated several sections including Section 16, creating a state of flux. The Court of Appeal overturned most of those orders, confirming only Sections 7 and 10(4) inconsistent with the Constitution. The statutory scheme channeling work injury claims through the Director and appeals to the E&LRC stands.
Whether the Claimant's claim should proceed before the Court
The claim is struck out because the Claimant did not first present his grievance to the Director of Work Injury Benefits
The chemical eye injury is covered under the First Schedule to WIBA on degree of disablement. The Claimant should present his grievance to the Director and come to the E&LRC only on appeal. The Court declines jurisdiction not on the grounds raised by the Respondent but because the Claimant bypassed the statutory procedure, which it is the Court's duty to implement.
Legal principles established
#- The E&LRC has jurisdiction over work injury disputes under the Work Injury Benefits Act, but only appellate jurisdiction; primary jurisdiction vests in the Director of Work Injury Benefits
- Where a clear procedure for redress is prescribed by statute, that procedure should strictly be followed
- Jurisdiction can only be exercised as given by the Constitution or Statute
Court orders
#- 1.The Claim herein is struck out with no order on the costs
- 2.The Claimant to seek remedy under the procedure laid down in the Work Injury Benefits Act
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution; Employment and Labour Relations Court Act; Work Injury Benefits Act No. 13 of 2007
Relief refused
#Claim for general and special damages for work injury
Claimant failed to pursue the procedure under the Work Injury Benefits Act; the Court's jurisdiction in work injury disputes is appellate, not primary, and vests in the Director of Work Injury Benefits
Costs
No order on the costs - the Claim is struck out with no order on the costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Claim herein is struck out with no order on the costs.
The Claimant to seek remedy under the procedure laid down in the Work Injury Benefits Act.
This jurisdiction however, is not a primary jurisdiction, but an appellate jurisdiction.
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution, or an Act of Parliament, that procedure should strictly be followed.
Issues in the judgment
#The judgment is not clear on the identity of the Director - Section 53 refers to a Director of Work Injury Benefits while Section 2 refers to 'Director of Occupational Safety and Health Services'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saidi Mohamed v Diamond Industries Ltd [2018] KEELRC 2447 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2447/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.