Kyalo v Kandia Fresh Produce Limited (Civil Case E248 of 2023) [2024] KEMC 19 (KLR)
The bottom line
#A Machakos court struck out a road accident injury suit because the injured person was actually an employee, so Kenya's work injury law applied instead.
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 Applicant has proved - on a balance of probabilities - that at the time of the accident, the Respondent was its employee.
- 2.Whether the claim falls within the jurisdiction of the Director of Occupational Safety and Health Services.
Key legal issues
#Whether the Respondent was an employee of the Applicant at the time of the accident
Yes - on a balance of probabilities the Respondent was an employee, as a conductor, based on the DM1 letter to the insurer with NHIF/NSSF tabulation
The employer bears the burden of proving an employment relationship it asserts, given its statutory duty to keep records under section 74 of the Employment Act. The DM1 document (letter to Old Mutual with NHIF and NSSF contribution tabulation), though irregularly attached, was saved under Order 19 rule 7 of the Civil Procedure Rules. Considered in the context of the record-keeping obligation, it persuaded the Court that it was more probable than not that the Respondent was an employee.
Whether the claim falls within the jurisdiction of the Director of Occupational Safety and Health Services rather than the Court
Yes - the claim, being a work injury claim under WIBA, falls within the exclusive jurisdiction of the Director, and the Court lacks jurisdiction
Section 16 of WIBA is an absolute statutory ouster clause denying an employee any civil action against the employer for occupational accidents. The Supreme Court in Law Society of Kenya v Attorney General upheld its constitutionality, holding it does not obstruct access to justice since the Director's forum and appeal to the ELRC under sections 23 and 52 of WIBA suffice. Having found the Respondent to be an employee, the claim is within WIBA.
Whether the irregularly attached exhibit DM1 could be relied upon
Yes - the Court exercised its discretion under Order 19 rule 7 to save the irregular annexture
Rule 9 and 10 of the Oaths and Statutory Declaration Rules require exhibits to be sealed and identified in the affidavit body. DM1 was merely attached without incorporation. Although the Court could have expunged it, Order 19 rule 7 permits reception of affidavits notwithstanding technical irregularities, and discretionary power is deployed to advance the course of justice.
Legal principles established
#- Where an employer asserts an employment relationship, the onus of proving it lies on the employer, courtesy of the record-keeping obligation under section 74 of the Employment Act
- Section 16 of WIBA is a statutory ouster clause vesting exclusive jurisdiction over work injury claims in the Director of Occupational Safety and Health Services, as affirmed by the Supreme Court
- An ouster clause is presumed not to exclude the Court's jurisdiction unless the statutory language is clear, firm and unequivocal
Court orders
#- 1.The suit is struck out in its entirety.
- 2.Each party shall bear his/its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of Magistrates' Courts under Articles 162(4) and 169(1)(a) and (2) of the Constitution and sections 6-10 of the Magistrates' Courts Act, 2015; ouster of jurisdiction by section 16 of the Work Injury Benefits Act, 2007
Relief refused
#Continuation of the Plaintiff's suit for general and special damages for injuries sustained in a road traffic accident
The claim is a work injury claim within WIBA and the exclusive forum is the Director of Occupational Safety and Health Services; the Court lacks jurisdiction
Costs
Since the claim cannot be said to be frivolous, this Court directs that each party shall bear his/its own costs.
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.
Consequently, this Court strikes this suit out in its entirety.
Since the claim cannot be said to be frivolous, this Court directs that each party shall bear his/its own costs.
Since this Court lacks jurisdiction, I down my tools.
Section 16 is a statutory ouster clause. An absolutist, for that matter.
the material has generated persuasion in the mind of this Court that on a balance of probabilities, that it’s more probable than not, that the Respondent was an employee of the Applicant at the time of the accident.
Issues in the judgment
#The judgment nowhere states the suit's case number, making the caseNumber field unascertainable from the judgment itself.
The judgment inconsistently identifies the Respondent as both a passenger and an employee without explaining the evidentiary basis for preferring the employee status.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyalo v Kandia Fresh Produce Limited (Civil Case E248 of 2023) [2024] KEMC 19 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/19/eng@2024-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.