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ELRCPartially AllowedNot stated in the excerpt· [2019] KEELRC 119 (KLR)

Yvonne Damaris Kimanthi & another (suing as the Administrators of the Estate of Newton Mugendi Njeru (Deceased) v Pathologists Lancet Kenya Limited [2019] KEELRC 119 (KLR)

Employment and Labour Relations Court
20 December 2019
OMOnesmus Makau
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out most of a family's compensation claim over a workplace death because it was filed late and work injury claims must now go through a government directorate.

What this practically means

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Executive summary

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The respondent filed a preliminary objection seeking the striking out of the claimants' memorandum of claim arising from the death of their kin, Newton Mugendi Njeru, a Medical Technologist employed by the respondent, who died in a road accident on 24.2.2015 while a pillion passenger on the respondent's motorcycle in the course of employment. The claimants sought the deceased's salary for 23 years to retirement age, general damages under the Law Reform Act, the Fatal Accidents Act and the work injury statutes. The objection raised three grounds: non-compliance with Section 2(3) of the Law Reform Act; failure to plead a cause of action under Section 3 of the Fatal Accidents Act; and lack of jurisdiction given WIBA and Gazette Notice No. 9243 of 2011. The court found the suit was filed 14 months after the grant of letters of administration, offending Section 2(3), and that no negligence was pleaded against the respondent, taking the claim outside Section 3 of the Fatal Accidents Act. On jurisdiction, the court held the suit was properly filed when instituted on 9.10.2017, since the Director of Occupational Safety and Health Services' powers had been quashed in 2009, but following the Court of Appeal's decision in Attorney General v Law Society of Kenya & COTU [2017] eKLR, the Director's power was reinstated and the WIBA claim was referred to the Director. The claim for anticipatory salary was also struck out, it not being provided for in the contract of service. The preliminary objection succeeded to that extent, with no order as to costs.

Key legal issues

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01

Maintainability of tort claim against a deceased's estate under Section 2(3) of the Law Reform Act

Holding

The suit, filed 14 months after the grant of letters of administration ad litem, offends Section 2(3) of the Law Reform Act

Reasoning

Section 2(3)(b) requires proceedings in tort against a deceased's estate to be taken not later than six months after representation is taken out. The grant issued on 3.8.2015 and the suit was filed on 9.10.2017, a period of 14 months, hence the claim was out of time and not maintainable.

p. 2
02

Claim under Section 3 of the Fatal Accidents Act

Holding

The suit as pleaded does not fall within Section 3 of the Fatal Accidents Act because no negligence was pleaded against the respondent

Reasoning

Section 3 imposes liability where death is caused by wrongful act, neglect or default. The statement of claim neither blamed the respondent for the death nor pleaded particulars of negligence, so the statutory precondition for liability was not satisfied and the claim under that statute fails.

p. 2
03

Jurisdiction over WIBA claims

Holding

The suit was properly filed in this court when instituted on 9.10.2017, but following the Court of Appeal decision in Attorney General v Law Society of Kenya, the claim under WIBA must now be determined by the Director of Occupational Safety and Health Services

Reasoning

The court has exclusive jurisdiction over employment disputes under Article 162(2)(a) and Section 12 of the ELRC Act. However, between the High Court's 2009 decision quashing the Director's powers and the Court of Appeal's 17.11.2017 decision, jurisdiction lay in the court or designated magistrates. Since the suit predates the Court of Appeal decision, it was properly filed; but circumstances have now changed and the Director's power is reinstated.

p. 2

Legal principles established

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  • A suit in tort against the estate of a deceased person must be filed within six months of the grant of representation, failing which it is not maintainable under Section 2(3)(b) of the Law Reform Act
  • Anticipatory salary cannot be awarded unless specifically provided for under the contract of service
  • Following Attorney General v Law Society of Kenya & Central Organisation of Trade Union [2017] eKLR, claims for compensation under WIBA must be lodged with the Director Occupational Safety and Health Services, the court having appellate jurisdiction

Court orders

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  1. 1.The claim under the Law Reform Act and the Fatal Accidents Act struck out
  2. 2.The claim for anticipatory salary for 23 years struck out
  3. 3.The claim under WIBA referred to the Director Occupational Safety and Health Services to assess and determine compensation if any under WIBA
  4. 4.No order as to costs

Authorities

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Legislation

  • Law Reform ActSection 2(3)
  • Fatal Accidents ActSection 3
  • Constitution of KenyaArticle 162(2)(a); Article 159
  • Work Injury Benefits ActParts III, IV and V; Sections 34, 36, 37, 51 and 52
  • Employment and Labour Relations Court ActSections 12 and 29(3) & (4)
  • Gazette Notice No. 9243 of 2011
  • Workmen Compensation Act

Cases cited (1)

  • Attorney General v Law Society of Kenya & Central Organisation of Trade Union
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Yvonne Damaris Kimanthi & another (suing as the Administrators of the Estate of Newton Mugendi Njeru (Deceased) v Pathologists Lancet Kenya Limited [2019] KEELRC 119 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/119/eng@2019-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.