Jiwani Impex Limited v Ndoro (Appeal E089 of 2023) [2024] KEELRC 1366 (KLR)
The bottom line
#Kenya's Employment Court sent this work injury jurisdiction fight back to the magistrates' court because the appeal record was too muddled to decide.
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 learned magistrate properly dismissed the appellant's preliminary objection dated 29 March 2022 challenging the trial court's jurisdiction to hear a WIBA claim
- 2.Whether the Chief Justice's Practice Directions of 28 April 2023 (Gazette Notice No. 5476) can confer or restore jurisdiction on the magistrates' court to determine work injury claims under WIBA
- 3.Whether this appeal can be determined given the state of the record of appeal
Key legal issues
#State of the record of appeal
The appeal could not be determined on the merits because the record was mixed up between two different causes and the magistrate had addressed the wrong notice
The court found the record of appeal conflated the judgment in Mombasa CMELRC No. 116 of 2017 delivered by Hon. E. K. Makori with the ruling in No. 2342 of 2015 delivered by Hon. Nabibya. Further, the magistrate's ruling addressed a notice dated 3 November 2020 rather than the preliminary objection dated 29 March 2022 which was under appeal, so the appeal related to different sets of facts. The court therefore directed the parties to revert to the lower court for the objection to be addressed afresh on the merits, preferably by a different magistrate.
Whether the magistrates' court has jurisdiction over WIBA claims in light of the Chief Justice's Practice Directions of 28 April 2023
Not decided; the court declined to express itself on the fundamental questions of law raised pending a proper record and the trial court being moved appropriately
The appellant argued that WIBA, particularly section 16, confers exclusive jurisdiction on the Director to investigate, calculate and award compensation, ousting common law remedies and the magistrates' court's jurisdiction, and that practice directions cannot override statute. The respondent argued the Gazette Notice and legitimate expectation to access justice preserved pending claims. The court found these questions 'very fundamental' but held it would lose sight of them in light of the defective record, requiring the trial court to be moved first.
Legal principles established
#- A first appellate court must re-evaluate the lower court record, re-assess and make its own conclusions
Court orders
#- 1.Parties to revert to the lower court and have the objections dated 29 March 2022 addressed on the merits
- 2.It would suffice to have a different Magistrate other than Hon. Nabibya hear and determine the preliminary objection, she having expressed herself on the notice dated 3/11/2020
- 3.The trial court must be moved as appropriate before this court expresses itself on the matter
- 4.The record to be separated from Mombasa CMELRC 116 of 2017 and 2342 of 2015
- 5.The file to be placed before the Chief Magistrate, Mombasa, for allocating and taking hearing directions, with mention on 17 June 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Mombasa (ELRC)
- Mombasa CMELRC No. 2342 of 2015
- Jurisdiction invoked
- First appeal from the magistrates' court to the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and the Magistrates' Courts Act
Relief refused
#Setting aside the ruling of 17 August 2023 and upholding the preliminary objection dated 29 March 2022 with dismissal of the respondent's suit
The record of appeal was mixed up with a different cause and the magistrate addressed the wrong notice; the court declined to reach the substantive jurisdictional questions
Costs
No costs order was made in the judgment.
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 record herein is mixed up with Mombasa CMELRC No.116 of 2017 with regard to the judgment delivered on 3 February 2021 by Hon. E. K. Makori and CMELRC No.2342 of 2015 relating to the ruling delivered on 17 August 2023 by Hon. Nabibya. The record is not tidy at all.
The appellant raises very fundamental questions of law but the court will lose sight in addressing the same in light of the Record before it. Parties to revert to the lower court and have the objections dated 29 March 2022 addressed on the merits.
Accordingly, the file shall be placed before the Chief Magistrate, Mombasa for allocating and taking hearing directions. Mention on 17 June 2024.
Issues in the judgment
#The judgment contains inconsistent dates and cause numbers: the ruling appealed from is described as in 'Mombasa CMELRC No. 116 of 207' at the outset, the respondent's claim is dated 1 December 2015 but alleges an injury 'on 5 July 2024', the record is mixed between CMELRC No. 116 of 2017 and 2342 of 2015, and the appeal is described as relating to 'Mombasa CMELRC No. 11 of 2017'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karanja v Master Star Co Ltd & another (Cause E418 of 2022) [2025] KEELRC 1636 (KLR)[2025] KEELRC 1636 (KLR)30 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Jiwani Impex Limited v Ndoro (Appeal E089 of 2023) [2024] KEELRC 1366 (KLR)", Case Analysis (2024). Mombasa CMELRC No. 116 of 2017 (appeal); underlying suit Mombasa CMCC No. 2342 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1366/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.