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ELRCOtherCause (Nairobi), amended Memorandum of Claim dated 20th July 2022, amended 19th March 2024

Muriithi v Maf Carrefour Retail Limited Kenya (Cause E532 of 2022) [2024] KEELRC 2855 (KLR)

Employment and Labour Relations Court
18 November 2024
2,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cannot directly award compensation for workplace injuries; injured workers must first go through the Director of Occupational Safety and Health under WIBA.

What this practically means

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Executive summary

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The claimant, having resigned from the respondent's employment, filed an amended Memorandum of Claim seeking declarations of constructive dismissal and of unlawful conduct under the Work Injury Benefits Act (WIBA), together with compensation of Kshs. 500,000 for the work injury and 12 months' salary (Kshs. 387,360) for the flawed termination, plus costs and interest. The injury arose on 3rd December 2020 while she was arranging soda for delivery. Following the amendment, the respondent filed a notice of preliminary objection dated 16th April 2024 contending that the Court lacks first-instance jurisdiction over work injury claims under section 16 of WIBA, the Supreme Court's decision in Law Society of Kenya v Attorney General, and paragraph 8 of the Chief Justice's Practice Directions of 24th April 2023. The claimant opposed, relying on Mukisa Biscuit and contending the objection was not a pure point of law since facts were disputed, and alternatively sought referral to the Director if the Court downed its tools. The Court held that the cause of action was admittedly work-injury related and that the objection met the Mukisa threshold. Applying section 16 WIBA, the Supreme Court's LSK decision, and the decisions in Jecinta Waithiegeni Wambugu and Paul Mutuku Mulwa (which endorsed Rika J's holding in Saidi Muhamed that the Court enjoys only appellate jurisdiction over WIBA claims), the Court held it could not usurp the Director's role. The objection was upheld; the work-injury prayers (b, c and e) were referred to the Director of Occupational Safety and Health, and the Court retained only the constructive dismissal claim. Mention was set for 10th December 2024 for pretrial directions, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Notice of Preliminary Objection met the threshold of a pure point of law under Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
  2. 2.Whether the Employment and Labour Relations Court has first-instance jurisdiction to entertain work injury claims under the Work Injury Benefits Act
  3. 3.What disposition should follow where part of a suit falls outside the Court's jurisdiction

Key legal issues

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01

Validity of the preliminary objection on jurisdiction

Holding

The objection satisfied the Mukisa Biscuit threshold as a pure point of law

Reasoning

The cause of action was admittedly work-injury related. The claimant herself invoked the Mukisa test, and the Court found the facts pleaded were not in dispute in so far as the claim was founded on a work injury; therefore the jurisdictional point could be determined without ascertaining facts, making the objection competent.

p. 3
02

Court's jurisdiction over WIBA work injury claims at first instance

Holding

The Court has only appellate jurisdiction over WIBA compensation claims; original jurisdiction lies with the Director of Occupational Safety and Health Services

Reasoning

Section 16 WIBA bars actions against employers for damages in respect of occupational accidents or disease save under the Act. The Supreme Court in LSK v Attorney General upheld section 16 as constitutional, holding it created a statutory dispute-resolution mechanism starting with the Director, with appeals under section 52. The Court therefore downed its tools.

p. 4
03

Proper disposition of mixed claims

Holding

The WIBA-founded prayers (b, c and e) were referred to the Director while the Court retained the constructive dismissal claim

Reasoning

Following Paul Mutuku Mulwa and Jecinta Waithiegeni Wambugu, where a claim is partly founded on WIBA, the Court refers the WIBA portion to the Director and proceeds with the distinct employment claim, such as unfair or constructive dismissal.

p. 5

Legal principles established

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  • Section 16 of WIBA ousts the Employment and Labour Relations Court's original jurisdiction over work injury claims; such claims must first be assessed by the Director of Occupational Safety and Health Services, with appeals lying under section 52 WIBA
  • A preliminary objection on jurisdiction founded on WIBA is a pure point of law satisfying the Mukisa Biscuit threshold

Court orders

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  1. 1.The Notice of Preliminary Objection dated 16th April 2024 is upheld; the Court declines jurisdiction over the claims founded on WIBA
  2. 2.The claimant's work-injury claims (prayers b, c and e of the amended Memorandum of Claim) are referred to the Director of Occupational Safety and Health for consideration under WIBA
  3. 3.The Court retains only the claims for constructive dismissal/unlawful termination
  4. 4.Mention on 10th December 2024 for pretrial directions on the outstanding claims
  5. 5.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Work Injury Benefits Act framework; objections determined on jurisdiction under section 16 of the Work Injury Benefits Act, No. 13 of 2007

Relief refused

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Declaration that failure to report injury to Director WIBA was unlawful (prayer b)

Court lacks first-instance jurisdiction over work injury claims under section 16 WIBA; referred to the Director

p. 4

Declaration that failure to maintain insurance policy under section 7 WIBA was unlawful (prayer c)

Court lacks first-instance jurisdiction over work injury claims under section 16 WIBA

p. 4

Compensation of Kshs. 500,000 for the work injury and treatment (prayer e)

Court cannot usurp the Director's role under WIBA to award work-injury compensation

p. 4

Costs

Costs in the cause.

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 Court taking into account the facts disclosed in the pleadings of the parties, the analysis of the WIBA jurisdiction and the case law holds the Notice of Preliminary Objection dated 16th April 2024 as merited and downs its tools over the claims founded on WIBA for want of jurisdiction.
p. 4Disposition - preliminary objection upheld
The claimant's claims founded on work injury herein and as relates to prayers b, c and e of the amended Memorandum of Claim are referred to the Director of Occupational Safety and Health for consideration under the provisions of the WIBA.
p. 4Referral to Director
The Court retains only the claims for constructive dismissal seeking compensation for unlawful and fiawed termination.
p. 5Claims retained
Mention on 10th December 2024 for pretrial directions on the outstanding claims.
p. 5Case management directions
Costs in the cause.
p. 5Costs

Issues in the judgment

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minor

Neutral citation and full cause number not printed in the judgment; case number recorded descriptively from the pleadings

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, "Muriithi v Maf Carrefour Retail Limited Kenya (Cause E532 of 2022) [2024] KEELRC 2855 (KLR)", Case Analysis (2024). Cause (Nairobi), amended Memorandum of Claim dated 20th July 2022, amended 19th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2855/eng@2024-11-18

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