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ELRCStruck OutNotice of Motion Application dated 5th March 2024 (ELRC, Nyeri)

Makomboki Tea Factory Limited v Mwaura (Miscellaneous Application E002 of 2024) [2024] KEELRC 2145 (KLR)

Employment and Labour Relations Court
31 July 2024
OMOnesmus N Makau
2,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nyeri struck out Sasini PLC's bid to reopen a work injury award, ruling employers must challenge DOSH decisions through the correct legal channels.

What this practically means

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Executive summary

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The Applicant, an employer, moved the ELRC at Nyeri under section 12 of the ELRC Act and sections 25 and 51 of the Work Injury Benefits Act seeking referral of a WIBA assessment (WIBA/MUR/158/22/23) to the County Occupational Safety and Health Officer, Murang'a, for reassessment. Its factory worker (the Respondent) had suffered an occupational accident in December 2021; DOSH assessed his permanent incapacity at 50% and compensation at Kshs. 1,959,600. The Applicant claimed it was never served with the assessment, obtained a second medical opinion putting incapacity at 5%, settled a portion of the award, and could not object within the 60-day statutory window. It sought enlargement of time before the Respondent's Thika Magistrates' Court case (E001 of 2024) seeking adoption of the assessment could proceed. The Respondent opposed, arguing the objection timeline had lapsed, the Director was functus officio, and no provision allowed extension of time. The court framed two issues: its jurisdiction to remit a DOSH award or enlarge time after adoption, and the merits. It held it had no jurisdiction: the Applicant's complaints about service and the second medical opinion belonged before the Thika Magistrates' Court where the award was filed for adoption; there was no appeal or judicial review before it; and the Director had not been joined. Inherent jurisdiction was unavailable to cure non-compliance with adjectival law. The application dated 5th March 2024 was struck out with costs.

Questions the Court framed

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

  1. 1.Whether this Court has the jurisdiction to refer back an award by DOSH or enlarge time for filing of an objection before DOSH after adoption of the same by a court of law.
  2. 2.Whether the application is merited.

Key legal issues

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01

Jurisdiction to remit a DOSH award or enlarge time for objection after the statutory period

Holding

The court had no jurisdiction to grant the orders sought; the application was not properly moved.

Reasoning

Sections 51 and 52 of WIBA provide the avenue to challenge a DOSH decision: objection to the Director within 60 days and appeal to the Industrial Court within 30 days of the Director's reply. The Applicant's complaints about service and the second medical opinion should have been raised before the Thika Magistrates' Court where the award was filed for adoption and enforcement. There was no appeal or judicial review before the judge, and the Director was not joined. Having found no jurisdiction, the court struck out the application with costs.

p. 5
02

Invocability of the court's inherent jurisdiction

Holding

Inherent jurisdiction could not be invoked on these facts.

Reasoning

The Applicant argued that failure to serve the DOSH assessment denied it the chance to object, creating a lacuna warranting the court's inherent power. The court rejected this, holding that inherent jurisdiction exists only to fill gaps in the law and meet the ends of justice, not as a remedy for a party out of step with adjectival law. The claim of non-service did not open a gap in the statute; the statutory objection and appeal channels existed and were not shown to be unavailable.

p. 5

Legal principles established

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  • A court must down tools once it finds it lacks jurisdiction over a matter.
  • Inherent jurisdiction is only available where there is a gap in the law, not to rescue a party who has fallen foul of adjectival law.
  • Challenges to a DOSH award filed for adoption in a subordinate court ought to be raised in those proceedings, not by a fresh application in the ELRC without joining the Director.

Court orders

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  1. 1.The application dated 5th March, 2024 struck out with costs.

The bench

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

OM
majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; sections 25 and 51 of the Work Injury Benefits Act (as invoked by the Applicant)

Relief refused

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Referral of the WIBA assessment in WIBA/MUR/158/22/23 to the County Occupational Safety and Health Officer Murang'a for reassessment, and enlargement of time to object to the DOSH assessment

The court held it was not properly moved and lacked jurisdiction; the grievances should have been raised before the Thika Magistrates' Court where the award was filed for adoption, and DOSHO was not joined to the application

p. 5

Costs

The application dated 5th March, 2024 was struck out with costs (awarded 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.

The application seeks substantive orders against an arbitrator without joining him to respond to the said accusation of procedural impropriety and irrationality.
p. 5proper parties and forum for challenging a DOSH award
Inherent jurisdiction is not a card to be pulled out when a party finds himself out of order with the adjectival law.
p. 5limits of inherent jurisdiction
In conclusion, I must say that a court should down tools immediately it finds that it has no jurisdiction over a matter. I honorably do so and proceed to strike out the application dated 5th March, 2024 with costs.
p. 5disposition - striking out for want of jurisdiction

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, "Makomboki Tea Factory Limited v Mwaura (Miscellaneous Application E002 of 2024) [2024] KEELRC 2145 (KLR)", Case Analysis (2024). Notice of Motion Application dated 5th March 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2145/eng@2024-07-31

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