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ELRCDismissedCause CMELRC No.845 of 2018 (application dated 14th April, 2021)

Austin Oduor Odira v Kenya Sweets Limited & another [2021] KEELRC 1496 (KLR)

Employment and Labour Relations Court
10 June 2021
1,443 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 ruled that work injury claims seeking damages beyond a WIBA award must stay in the magistrates' court, not the Employment and Labour Relations Court.

What this practically means

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Executive summary

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The applicant, a casual labourer, lost his right arm in a workplace accident on 27th June 2016 while mixing sugar and gum at the respondents' sweets factory. The incident was reported to the Director of Occupational Safety and Health Services, who awarded him Kshs.1,720,000, which the respondents allegedly failed to pay. On 29th November 2017 the applicant filed CMELRC No.845 of 2018 before the Chief Magistrate's Court, Milimani, claiming general damages, special damages of Kshs.9,200, the Director's award of Kshs.1,720,000 with interest, and costs. By an application dated 14th April 2021 under the ELRC Act and the Civil Procedure Act, he sought transfer of the suit to the ELRC, arguing there had been confusion over which court had jurisdiction over work injury claims. Justice M. Mbaru dismissed the application. The court held that under WIBA, where parties are satisfied with the Director's award, the ELRC has adopted a purposive approach allowing claims limited to enforcement of the award, while dissatisfaction lies only by appeal under section 52. The applicant's suit, framed as an ordinary claim for damages beyond the Director's award, could not properly be entertained by the ELRC; relying on Law Society of Kenya v Attorney General & COTU, the court noted that section 16 of WIBA bars a common-law damages action against an employer and channels claims through the Director with appellate redress to the ELRC. The court dismissed the application and directed that the parties be heard before the Chief Magistrate's Court at Nairobi, Milimani Commercial Court, in Civil Case No.845 of 2018. No costs order was recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit CMELRC No.845 of 2018 pending before the Chief Magistrate's Court should be withdrawn and transferred to the ELRC for hearing and determination
  2. 2.Whether the ELRC is the appropriate forum for the applicant's claims as framed, given the award of the Director of Occupational Safety and Health Services under WIBA

Key legal issues

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01

Whether the ELRC should accept transfer of a suit filed in the magistrates' court where the applicant seeks general and special damages beyond the Director's WIBA award

Holding

The application was dismissed; the ELRC is not the appropriate forum for claims framed beyond the Director's award, and transfer would not achieve the desired results

Reasoning

The Director had already assessed and awarded compensation of Kshs.1,720,000. The applicant's plaint claimed general damages, special damages and interest beyond the award. Under WIBA, a dissatisfied party may only appeal under section 52; a claim limited to enforcement of the award is permissible. The applicant filed an ordinary suit, not an enforcement claim or appeal, so transfer to the ELRC would commence a procedure not envisaged under WIBA or the court's Rules. Section 16 of WIBA bars a common-law damages action against the employer.

p. 2
02

The scope of section 16 of WIBA and access to courts

Holding

Section 16 does not limit access to courts but channels employee claims through the Director's investigation and award, with an appeal mechanism under section 52 to the ELRC

Reasoning

Applying the Supreme Court's decision in Law Society of Kenya v Attorney General & COTU, the court noted that section 16 read with sections 23 and 52 of WIBA provides legal redress to aggrieved parties from decisions of the Director, and the ELRC can determine all relevant matters arising from those decisions.

p. 2

Legal principles established

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  • Where parties are satisfied with the Director's award under WIBA, the Act has not established an enforcement mechanism, and the ELRC has adopted a purposive approach permitting a claim limited to enforcement of the Director's award; dissatisfaction with the award lies only by way of appeal under section 52
  • Section 16 of WIBA bars an employee's action for damages against an employer in respect of an occupational accident save under the Act

Court orders

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  1. 1.Application dated 14th April, 2021 dismissed
  2. 2.Parties to be heard before the Chief Magistrate's Court at Nairobi Milimani Commercial Court in Civil Case No.845 of 2018

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3, 12 and 20 of the Employment and Labour Relations Court Act and section 18(b) of the Civil Procedure Act (as cited in the application)

Relief refused

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Transfer of CMELRC No.845 of 2018 from the Chief Magistrate's Court to the ELRC

The court held it was not the appropriate forum for the claims as framed; only an appeal or a claim to enforce the Director's award could be entertained, and a transfer would not yield the desired results in fact or in law

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, application dated 14th April, 2021 is found without merit and is hereby dismissed. parties shall be heard under Chief Magistrates Court at Nairobi Millimani Commercial Court Civil Case No.845 of 2018.
p. 3Final orders - dismissal of transfer application
The court being seized of original jurisdiction with regard to employment and labour relations disputes has adopted a purposive approach of parties filing a claim to enforce the decision of the Director.
p. 2Enforcement of Director's WIBA award in the ELRC
A transfer of the suit from the lower court to this court would not yield the desired results in fact or in law.
p. 2Forum appropriateness under WIBA

Issues in the judgment

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minor

The application cites 'section 181(b) of the Civil Procedure Act', which does not exist; likely a typographical error for section 18(b)

minor

The judgment inconsistently refers to the suit as CMELRC No.845 of 2018, CMCC No.845 of 2018 and MCELRC No.845 of 2018

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Austin Oduor Odira v Kenya Sweets Limited & another [2021] KEELRC 1496 (KLR)", Case Analysis (2021). Cause CMELRC No.845 of 2018 (application dated 14th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1496/eng@2021-06-10

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