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ELRCDismissedNot stated in judgment

Malongo v Abbysinia Iron & Steel Company Ltd (Appeal E004 of 2021) [2024] KEELRC 695 (KLR)

Employment and Labour Relations Court
19 March 2024
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that 2023 directions on workplace injury claims do not reopen cases already finally decided.

What this practically means

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Executive summary

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The Appellant/Applicant moved the Employment and Labour Relations Court at Kisumu by a motion dated 27th October, 2023 seeking review of the court's judgment of 13th October, 2022, which had dismissed his Work Injury Benefits Act (WIBA) claim. The review was premised on the Chief Justice's Practice Directions gazetted on 28th April, 2023 (Kenya Gazette Notice No. 5476), which directed that WIBA claims filed after commencement of WIBA but before the Supreme Court's decision of 3rd December, 2019 in Law Society of Kenya v. Attorney General & Another should be heard and determined by the ELRC or Magistrates' Courts where filed. The Applicant's claim arose on 25th May, 2016 and was filed in the Magistrates' Court on 9th April, 2019; the lower court declined jurisdiction on 11th December, 2020, and the ELRC upheld that decision and also declined jurisdiction in its judgment of 13th October, 2022. The Respondent opposed, arguing the Practice Directions apply only to pending matters and have no retrospective effect on finalized claims. The court, per Christine N. Baari, J, reiterated the review threshold under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules, 2016, and held that the Practice Directions were not intended to apply retrospectively to matters already finalized; vesting jurisdiction after decisions had been rendered is not a ground for review. The motion was dismissed with costs to the Respondent.

Questions the Court framed

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

  1. 1.Whether the motion meets the threshold for review of the judgment of 13th October, 2022
  2. 2.Whether the Chief Justice's Practice Directions of 28th April, 2023 apply retrospectively to a matter already determined

Key legal issues

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01

Whether the Practice Directions of 28th April, 2023 confer a basis for review of a judgment already delivered declining WIBA jurisdiction

Holding

No. The directions apply only to pending matters, not to matters already finalized and determined.

Reasoning

The court found that the Practice Directions vested jurisdiction in the ELRC and Magistrates' Courts for WIBA matters filed before the Supreme Court decision, but their wording targets pending claims and pending judgments and rulings. Both courts had already rendered decisions declining jurisdiction. Construing the directions retrospectively so as to reopen concluded judgments was impermissible, as retrospectivity is an exception not to be presumed absent express words or necessary implication. Hence no ground for review existed.

p. 3
02

The statutory basis and threshold for review under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules, 2016

Holding

Review is available on discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason; none was established.

Reasoning

The court set out the review threshold and found the motion premised solely on a Gazette notice issuing Practice Directions. Since the directions did not apply retrospectively to finalized matters, the motion did not meet any of the review grounds, and was found lacking in merit and dismissed with costs.

p. 3

Legal principles established

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  • Retrospective application of a law or direction is not presumed; laws should generally be forward-looking and retrospectivity is an exception
  • Review jurisdiction requires discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason

Court orders

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  1. 1.The motion dated 27th October, 2023 seeking review of the judgment of 13th October, 2022 is dismissed
  2. 2.Costs of the application to the Respondent

The bench

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

Wrote the judgment

On appeal from
Magistrates' Court
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act as read with Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 45 Rules 1 & 2, Order 50 Rules 6 & 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A, 80 & 95 of the Civil Procedure Act

Relief refused

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Review of the judgment delivered on 13/10/2022 in light of the Practice Directions issued vide Kenya Gazette Notice No. 5476

The Practice Directions were not meant to have retrospective application to matters already finalized and determined; vesting of jurisdiction after decisions had been rendered is not a ground for review

p. 3

Costs

Costs of the application to the Respondent

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.

My reading and/or intepretation of the foregoning excepts of the Practice Directions, is that the directions were not meant to have a retrospective application for matters that have been finalized, and would therefore only be applicable to pending matters.
p. 3Retrospectivity of WIBA Practice Directions
In the final analysis, I find the motion lacking in merit, and is dismissed with costs to the Respondent.
p. 3Final orders - dismissal of review motion
Laws should generally be forward looking and restrospectivity of the law is an exception rather than the general rule.
p. 3Presumption against retrospectivity

Issues in the judgment

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minor

Internal inconsistency in the date of the judgment sought to be reviewed: described variously as delivered on 13/10/2023 and 13th October, 2022

minor

Respondent's affidavit refers to Practice Directions dated 28th April, 2022 whereas the Gazette Notice is of 28th April, 2023

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, "Malongo v Abbysinia Iron & Steel Company Ltd (Appeal E004 of 2021) [2024] KEELRC 695 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/695/eng@2024-03-19

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