THE JURISDICTIONAL QUESTION IN CASES REGARDING WORK-RELATED INJURIES, DISEASES AND DEATH.

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By Mutua Mugambi Titus and Mary Kanini Kitoo

On 17th Day of November, 2017 the Court of Appeal delivered the judgment of the Court in Civil Appeal 133 of 2011, Attorney General v Law Society of Kenya & Another [2017] eKLR in which it allowed an appeal from the decision of the High Court in Petition Number 185 of 2008, Law Society of Kenya v Attorney-General & Another [2009] eKLR. In the overturned decision, the High Court had found Sections 4, 7 (1) & (2), 10 (4), 16, 21 (1), 23 (1), 25 (1) & (3), 52 (1) & (2) and 58 (2) of the Work Injuries Benefits Act of 2007, (the Act) to be in conflict with the provisions of the former Constitution and consequently declared them null, and devoid of the status of law. The High Court had also awarded costs of the petition to the Petitioner. In allowing the appeal, the Court of Appeal substituted therefor with a verdict that only sections 7 and 10 (4) of the Act are inconsistent with the former and the current Constitution. The appellate court made no orders as to costs.

The reality that dawned following this judgment is that post its delivery, courts at the magistracy and Employment and Labor Relations (E&LRC) have declined, and are continuing to decline, to proceed any further with cases regarding injuries, diseases and deaths sustained in the course of employment already filed and pending in those courts citing lack of jurisdiction with the net effect being that the decision has stalled the resolution of those cases. One such reported case is Saidi Mohamed v Diamond Industries Ltd [2018] eKLR in which the E&LRC through a ruling delivered on 09th February 2018 declined jurisdiction in a claim where the employee had suffered chemical injury to the eye on the ground that the claimant had not come to court under the procedure laid down in the Act. The court stated that as the Court of Appeal noted, the Act became operational on 2nd June 2008 through Gazette Notice No. 60 of 2008 and it was the duty of the court to implement it.

What follows is an analysis of the petition initially presented before the High Court, the High Court’s Judgment, and the judgment of the Court of Appeal supplemented by general commentary on the status of the work-related injuries cases that are pending determination before various Courts. This write up will also recommend legislative amendments that ought to be considered in order to galvanize the applicability of the provisions of the Act and to level some of the hilly patches that are apparent in the Act.

THE HIGH COURT PETITION.

On 14th April, 2008, the Law Society of Kenya (the LSK) filed High Court Petition Number 185 of 2008 [supra] contesting the constitutional validity of various provisions of the Act. The contested sections were, in seriatim and with bolded emphasis:

Section 7(1) which provides that every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur under the Act to any of his employees.

Section 10(4) which provides that for the purposes of the Act, an occupational accident or disease resulting in serious disablement or death of an employee is deemed to have arisen out of and in the course of employment if the accident was due to an act done by the employee for the purpose of, in the interests of or in connection with, the business of the employer despite the fact that the employee was, at the time of the accident acting in contravention of any law or any instructions by or on behalf of his employer or without any instructions from his employer.

Section 16 which provides that no action shall lie by an employee or any dependent of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of the Act in respect of such disablement or death.

Section 23(1) which provides that after having received notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with the Act.

Section 25 (1) which provides that an employee who claims compensation or to whom compensation has been paid or is payable, shall when required by the Director or the employer as the case may be, after reasonable notice, submit himself at the time and place mentioned in the notice to an examination by the medical practitioner designated by the Director or the employer with the approval of the Director. Subsection 3 thereof entitled an employee, at his own expense, to have a medical practitioner of his choice present at an examination by a designated medical practitioner.

Read in consonance with subsection 2, subsection 1 of section 51 provides that the Director shall within fourteen days after the receipt of an objection in the prescribed form give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision. An objector has the right of Appeal against the decision of the Director, to the E&LRC within thirty days of receiving the reply.

Section 58 (2) which provides that any claim in respect of an accident or disease occurring before the commencement of the Act shall be deemed to have been lodged under the Act.

  1. CONTENTION OF HOW THE PROVISIONS OF THE ACT SPECIFICALLY VIOLATED THE PROVISIONS OF THE REPEALED CONSTITUTION.

The Petitioner, LSK, contended that these sections offended various provisions of the repealed Constitution in the following specific manner:

Section 7(1) was contrary to section 80(1) of the repealed constitution as it deprived employers of the freedom to take out insurance policies for their employees with any licensed insurance company of their choice; that the obligation imposed on the employee to commit additional funds for obtaining and maintaining the insurance policy constituted a taking of the petitioner’s property, contrary to section 75(1) of the repealed Constitution; and that the criminal offence created by the Act was not a legitimate exercise of the State’s police power.

Section 10(4) was impugned on grounds that in creating liability on the part of an employer “without fault” even where the employee is demonstrated to be at fault purported to deprive employers of their constitutional right to raise the defense that the incident arose from the employee’s criminal actions, negligence, or from unauthorized activity; that it violated the employer’s entitlement to fair trial in accordance with section 77(1) of the repealed constitution; and that it authorized unlawful acquisition of property contrary to section 75(1) of the repealed Constitution.

In so far as Section 16 of the Act prevents an employee from instituting Court action for recovery of damages in respect of injuries arising from accidents at the work place, it was challenged on grounds that all court actions which were pending hearing and/or delivery of judgment at the time of the passage of the Act would be adjourned generally and decrees from judgments already delivered could not be executed.

Section 23(1) which confers upon the Director the power to decide any claim or liability “upon making an inquiry” was impugned on grounds that it sought to divest judicial powers from the courts and confer them exclusively in the Director in contravention of section 60 of the repealed constitution.

It was contended that since Section 52(1) and (3) of the Act entitled only an objector to lodge an appeal to the E&LRC against the decision of the Director with no corresponding right to the affected person, this amounted to discriminatory treatment to the other party contrary to section 82(1) of the repealed constitution.

Section 58(2) which required that claims instituted prior to the commencement of the Act to be deemed to have been lodged under the Act was challenged on the grounds that the provision sought to take away the right to legal process in respect of matters covered by the statute as it sought to convert suits pending in Court into claims under the Act in contravention of section 75(1) of the repealed constitution to the extent that it purports to take away property rights, without due process.

In opposing the petition, the Attorney General broadly provided the background of the Act and generally deposed that the impugned sections of the Act are not unconstitutional because they do not violate individual rights enshrined in the repealed constitution. The gist of the Respondent’s submissions was that the Act was a modern statute enacted in the public interest and as such the petition was misconceived.

THE JUDGMENT OF THE HIGH COURT.

In a judgment delivered on 4th day of March, 2009, the trial court held:

To the extent that section 7(1) created an overweening Minister who controls choice of companies with which insurance is to be effected, it ran into conflict with the guaranteed rights of association under section 80 (1) of the repealed constitution. The court took judicial notice that the tendency for those wielding executive power is to distort such open-ended power-donations for purposes inimical to the enjoyment of constitutional rights by the citizen.

The deeming nature of section 10 (4) as regards liability denied employers the right to a fair hearing. Upon the foundation of the ‘deeming’ created by section 10 (4), section 23 (1) requires a complaint to be reported to the Director and the Director alone then proceeds to determine the question, and to resolve “the claim of liability”. The Director’s role in this regard is conclusive. The Director is also vested with the exclusive rights of “inquiry”, and of making an award. The court faulted section 16 on the basis that since work related accidents are litigious in nature; it is therefore a judicial question that shouldn’t be left to the Director. On this basis, the trial judge collectively found that Sections 10 (4), 16, 23 (1) and 52 (1) to lack professional draftsmanship and as such offend against an employer’s guaranteed rights to due process of the law.

According the Trial Judge, under section 25 (1), an employer is not permitted to designate a medical practitioner to represent him during the medical examination of an employee whereas an employee is granted such an opportunity. Therefore, this is discriminatory and runs counter to the terms of section 82 of the repealed constitution.

Section 52 (2) created an appellate locus for the objector in respect of the determinations of the Director but not for the affected party. This was also a kind of discrimination which ran counter to the terms of section 82 of the former Constitution.

Ultimately, the High Court found Sections 4, 7 (1) & (2), 10 (4), 16, 21 (1), 23 (1), 25 (1) & (3), 52 (1) & (2) and 58 (2) of the Act to be in conflict with the provisions of the former Constitution and consequently declared them null, and devoid of the status of law.

THE APPEAL.

The Attorney General was aggrieved by the decision of the High Court and consequently lodged an Appeal to the Court of Appeal being Civil Appeal 133 of 2011 [supra]. The Appellant argued generally that the learned trial Judge erred in law in declaring the nine sections of the Act inconsistent with the former Constitution.

Firstly, the Court of Appeal observed that at the heart of the Appeal lay the construction of the former Constitution vis-à-vis the nine impugned sections of the Act to ascertain whether they are in conflict or inconsistent with the former Constitution. The Court was also alive to the requirement that it was called upon to test those sections against the Constitution of Kenya, 2010, which was promulgated after the decision of the High Court so as to ensure that those provisions do not also offend the current constitutional order.

The Honorable judges of the Appeal noted that the Trial Court invalidated section 4 of the Act which is a definition section of the word “employer”. The petition had not cited this section among those it challenged. The learned trial Judge did not say how it was inconsistent with the repealed constitution. However, the learned judges expressed that they believed that the learned trial judge intended to annul sub-section (4) of section 7 of the Act.

The Appellate Court was of the view that it was innovative and a good idea for employers to take out insurance policy in respect of any liability that the employer may incur to employees for work-related injuries and diseases. However, in a free market economy the Government should not dictate to employers from which insurer they must take the policy. Like the trial judge, the appellate judges were satisfied that the requirement that the insurer be approved by the Minister went against section 80 of the repealed constitution for such a requirement would limit the right to freedom of association. The provision was also in contravention of Article 36 of the current Constitution on freedom of association.

In imposing strict liability on the employer regardless of who was to blame for an injury, disease or death even where the employee was acting against the law or negligently or through willful misconduct including self-injury, Section 10(4) (a) and (b) could not pass muster under Article 47 of the Constitution as it was arbitrary in its terms. The court was of the view that if an employee is injured through willful misconduct or against the direction of the employer or in the course of committing a criminal act, the employer cannot be held liable and should be free to raise the defense of illegality or contributory negligence.

The judges of appeal also observed that the trial judge invalidated section 16 of the Act without specifying with which provision of the repealed constitution it was inconsistent with. He merely opined that it offends the employer’s guaranteed rights to due process of the law. Nonetheless, the appellate court was of the view that since the section restricts claims for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of an employee to the procedure laid down under the Act, it was in consonance with the established jurisprudence that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. The jurisdiction donated to the Director is not unique, it is lawful.

Regarding section 23, the judges held that the powers of the Director are donated by statute and are legitimate. The exercise of that power is circumscribed and it is not arbitrary. Moreover, the Director retains power to review his decision in the event a party is thereby aggrieved. There is even an appellate avenue to the E&LRC.

The Appeal Court also noted that although the trial Judge invalidated section 25 of the Act, the memorandum of appeal did not specifically state in what way the learned Judge erred. Likewise the parties in their submissions did not address this provision. The trial Judge himself did not give any reason for his action or the extent to which the section was inconsistent with the repealed constitution. Nonetheless, the Court invoked the exercise of its powers as a first appellate court and went on to consider the question whether section 25(1) and (3) was conflict with the repealed constitution The Court observed that the concern raised in the petition was in relation to subsection (3), to the effect that before an employee can be paid compensation he has to undergo medical examination and that during such examination he would be entitled to have a medical practitioner of his choice present but at his own expense. The Court held that because under subsection (1) the employee is required to be examined by the medical practitioner designated by the Director or the employer with the approval of the Director, the subsection (3) provides equality of arms for the employee by giving him the option to also have a medical practitioner of his choice present during examination. The subsection does not, in the result, discriminate any party. It was in error therefore to strike it off for being in conflict with section 82 of the repealed constitution.

In evaluating Sections 51 and 52, the honourable judges noted that these sections provide for an appellate system against decisions of the Director. The textual wording of section 52 had the effect of only granting the right to appeal to an objector and not to the party on the opposite side or an affected person wishing to vary the award. The Court opined that a party in whose favor the decision is made may sometimes still be dissatisfied with the award and may wish to challenge the Director’s answer. Applying legislative intent, the judges saw no reason why in an adversarial litigation only one party would have a right of appeal. Be that as it may, the judges didn’t consider the sections to be inconsistent with the repealed constitution. Rather, they saw it as an error that can easily be amended by Parliament.

Lastly, Section 58 (2) of the Act, which contained the savings provisions of the Act, was impugned on grounds that the claimants in those pending cases have legitimate expectations that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked. While agreeing with this position, the honorable judges reasoned that the legislative practice where a new judicial forum is created to replace an existing system is to finalize all proceedings pending in the previous system before that forum where they were commenced. The Court anchored this reasoning in Section 23 of the Interpretation and General Provisions Act which provides that where a written law partially or wholly repeals another written law, unless a contrary intention appears, the repeal cannot revive anything not in force or existing before the repeal or affect the previous operation of a repealed law in relation to interests, rights and or obligations enshrined under such law. The judges drew illustrations from the provisions of Section 33 of the Employment and Labor Relations Court Act and Section 30(2) of the Environment and Land Court Act, 2011 which provide for what would happen to pending claims. Under the E&LRC Act, it was intended that all proceedings pending before the Industrial Court were to continue to be heard and were to be determined by that court until the E&LRC was established and came into operation. Under the E&LC Act, the Chief Justice was empowered to refer part-heard cases where appropriate to the E&LC after the Court was established. In its final rendition, the Court was of the view that in its original form section 58 (2) was not inconsistent with the repealed or current Constitution but nonetheless it requires further consideration to ensure smooth transition to the Act from the repealed Workmen’s Compensation Act.

Arising from the foregoing analysis and findings, the Court of Appeal allowed the appeal to the extent that it set aside the trial court’s orders declaring sections 4, 16, 21 (1), 23(1), 25 (1) (3), 52 (1) (2) and 58(2) to be inconsistent with the repealed constitution and substituted therefor with a verdict that only sections 7 and 10 (4) were inconsistent with the repealed and current Constitution.

POST COURT OF APPEAL JUDGMENT.

As mentioned in the opening paragraphs, post the delivery of the judgment of the Court of Appeal, Courts have declined to proceed any further with cases already filed in Court. These courts are either standing over generally these cases or striking them out for want of jurisdiction. With respect, this is a misinterpretation of the decision by the Court of Appeal. The honorable judges of the Court of Appeal succinctly addressed this issue and were of the view that the claimants in the pending cases have legitimate expectations that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked. The legislative practice where a new judicial forum is created to replace an existing system is to finalize all proceedings pending in the previous system before that forum where they were commenced.

To conceptualize and contextualize the duo principles of legitimate expectation and legislative practice in this discourse, pending work- related accident cases fall in four (4) expansive categories: claims filed before the commencement of the WIBA, claims filed during the tenancy of Petition Number 185 of 2008 (supra), claims filed after the judgment of the High Court and claims filed post the judgment of the Court of Appeal in Civil Appeal 133 of 2011 [supra]. Claims under the first category were brought under the repealed Workmen’s Compensation Act (Cap. 236) or the common law or both. Through a ruling delivered on 22nd May, 2008, the High Court ordered that pending the hearing and determination of the Petition, all pending litigation which had been commenced on the basis of either the Workmen’s Compensation Act or of the common law, or of a combination of both regimes of law, shall continue to be prosecuted and, in a proper case, finalized on the basis of the operative law prior to the entry into force of the Work Injury Benefits Act, 2007.’ Thus, the first and second categories of claims were, and are, to be prosecuted and determined on the basis of the operative law prior to the entry into force of the WIBA. The operative law in this sense is the Workmen’s Compensation Act and the Common Law. The Third category claims were filed after the High Court annulled the specified sections of the WIBA key amongst them being section 16 which required employees to first call upon the Director on their journey to seek compensation for work related injuries, diseases and death. Since the High Court had annulled this section, litigants could not rely on it because as per the existing jurisprudence it was not in existence. Thus, such litigants could only base their causes of action on Common Law since after the final determination of the Petition by the High Court, the conservatory orders giving life to the Workmen’s Compensation Act expired automatically. In addition, on 27th June, 2011 the Judiciary issued practice directions on matters of a tortious nature arising out of an employee/employer relations’ to the effect that claims arising out of an employer/employee relationship that are of a tortuous nature are not labor disputes and therefore fall within the jurisdiction of the courts and should be filed in the courts not in the industrial court. The last category relates to claims filed after the decision of the Court of Appeal. Since at present this is the binding judicial authority by dint of which section 16 of the WIBA once again finds relevance, claims filed after 17.11.2017 ought to follow the process of redress prescribed by the Act.

It is therefore a pervasion of justice for courts to drive claimants covered by the first, second and third categories from the seat of justice summarily as they have recently resulted to following the judgment of the Court of Appeal. Appreciating the fact that the limitation period for lodging a claim for compensation under the Act is twelve (12) months, some litigants are definitely caught out of time. This unfortunate reality is brought about not out of complacency or indolence on the part of the claimants but due to approaching the courts under the guidance of the then prevailing judgment of the High Court and practice directions issued by the court. Allowing this summary procedure to be applied across the board will ruthlessly drive litigants from the seat of justice without remedy.

The second gnawing issue concerns Section 16 as read with section 23 (1) of the Act to the extent that it confers powers of adjudication of work-related injuries, diseases or deaths upon the Director and expressly bars institution of court proceedings by the aggrieved employee save under the provisions of the Act. By dint of section 16, the right to approach the courts as the first point of call is curtailed but not completely barred. In a manner of speaking, the E&LRC is designated as an appellate court from the decision of the Director not as a court of first instance.

It is of essence to also mention that under Kenya Gazette Vol. CXX – No. 74, Gazette Notice No. 6024 of 22nd June, 2018; the Chief Justice appointed all Magistrates from the rank of Senior Resident Magistrate and above as Special Magistrates to hear and determine disputes arising from contracts of employment where employees gross monthly pay is below KShs.80,000/=. These Special Magistrates will also hear and determine offences under WIBA 2007, Employment Act 2007, Labour Institutions Act 2007, Occupational Safety and Health Act 2007, and Labour Relations Act 2007.

THE PROCEDURE FOR REDRESS IN WORK-RELATED INJURIES, DISEASES AND DEATHS.

The Act lays out the following process of redress to be followed before a party approaches the Court.

An employee is obligated to give a written or verbal notice of any accident which occurs during employment to the employer and a copy of the written notice or a notice of the verbal notice is to be sent to the Director within twenty-four (24) hours of its occurrence [S21(2)]. When making the report, an employee is also obligated to furnish such information and documents, including a medical report, to the employer or Director [S (24(1)]. Notice of Accident by or on behalf of a Workman is made through L.D Form 105/1.

An employer is required to report an accident to the Director within seven (7) days after having received notice of an accident or having learned that an employee has been injured in an accident [S22(1)]. When submitting the claim to the Director, an employer is required to submit a medical report or other document or information concerning such claim [S (24(1)]. Upon request of an employee, an employer is required to furnish such employee with a copy of the notice of the accident furnished by the employer to the Director in respect of a claim for compensation by such employee [S22(3)]. Notice by Employer of Accident Causing Injury to, or Death of, a Workman is made through L.D Form 104/1.

After receiving notice of an accident or having learned that an employee has been injured in an accident, the Director shall make such inquiries as are necessary to decide upon any claim or liability [S23(1)].

Upon request by an employer or the Director, an employee claiming compensation is required to submit to medical examination by a medical practitioner designated by the Director or the employer. An employee is entitled to have a medical practitioner of his choice present at an examination at his own expense [S25].

A claim for compensation is to be lodged by or on behalf of the claimant in the prescribed manner within twelve (12) months after the date of the accident or, in the case of death, within twelve (12) months after the date of death [S26(1)].

Any person aggrieved by a decision of the Director on any matter under the Act, may within sixty (60) days of such decision, lodge an objection with the Director against such decision. The Objection is to be in writing and in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined (S51).

After the receipt of an objection, the Director is required to give a written answer to the objection within fourteen (14) days, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision. An objector may, within thirty (30) days of the Director’s reply being received by him, appeal to the E&LRC against such decision (S51).

The mode of approaching the Court is as per Rule 2 of the Workmen’s Compensation Rules which provides the forms to be used in matters or proceedings under the Act, with such variations and modifications as the circumstances may require. The Forms are:

  • Form No 1 which is used by an injured workman to apply for compensation payable to him.

  • Form No 2 which is used by dependants of a deceased workman to apply for compensation payable to such dependants where death has resulted from the injury to the workman.

  • Form No. 3 is used for General Application.

  • Form No. 4 titled Notice to Respondent as to Application, informs a Respondent that an application has been filed and requires him to reply within 7 days and it also informs him of the hearing date for the application.

  • Form No 5 is used by a Respondent to answer to an Application.

  • Form No 6 is used to Request for Particulars from a workman, applicant or respondent.

  • Form No 7 is used to make an Order for Periodical Payments.

  • Form No. 8 is used to make an Application for Revision of a Periodical Payment.

  • Form No. 9 is sued to make an Order on Revision of Order or Agreement for Periodical Payment.

  • Form No. 10 which is used by a Principal to give notice to a Contractor that an application or claim for compensation has been made by a work man against the Principal.

  • Form No. 11 which is used by a Contractor to give notice of intervention in an application for compensation made by a workman.

  • Form No. 12 titled Application Record Book is used by the E&LRC to keep a record of all applications made under the Act. The details captured in the columns of the Application Record Book include: number of application, date the application is lodged, nature of application, names and addresses of parties and of their respective advocates, date of serving the application, date of receiving an answer to the Application, hearing date of the application and orders made; and remarks thereon.

LIMITATIONS OF THE ACT.

A reading of Section 87 of the Employment Act, 2007 suggests that the jurisdictional question in work-related cases is far from settled. Subsection 1 (c) thereof provides; “Subject to the provisions of this Act, whenever any question, difference or dispute arises touching … any injury to the person … under any contract of service the aggrieved party may complain to the labor officer or lodge a complaint or suit in the Industrial Court.” Subsection 2 thereof in turn reads, “No court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1).” This section does not mention the role of the Director in injury cases but rather gives a complainant the discretion to complain to the labor office or to lodge a complaint or suit in the E&LRC.

Still on the jurisdictional question, a five (5) judge bench of the Court appeal in Civil Appeal 287 of 2016, Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 Others [2017] eKLR was called upon to consider the constitutionality of Section 9 (b) of the Magistrates’ Courts Act, 2015 which vests the magistrates courts the jurisdiction to hear and determine employment & labor relations claims subject to pecuniary limits. A central legal contest in the Appeal was whether Parliament had powers to enact legislation conferring jurisdiction on the magistrates courts with respect to disputes relating to employment and labor relations in light of Article 162 (2) of the Constitution which creates a specialized court with equal status as the High Court with exclusive jurisdiction to hear and determine such disputes. The initial litigation before the High Court through Constitutional Petition 3 of 2016, Malindi Law Society v Attorney General & 4 Others [2016] eKLR) had been prompted by the enactment of the Magistrates’ Courts Act, 2015 by Parliament. Section 9 (b) thereof clothed the magistrates courts with jurisdiction to hear and determine disputes relating to employment and labor relations. It provided, “A magistrate’s court shall in the exercise of the jurisdiction conferred upon it under section 29 of the Industrial Court Act, 2011 and subject to the pecuniary limits under section 7(1), hear and determine claims relating to employment and labour relations.” In a judgment delivered on 11th November 2016, a three (3) judge bench of the High Court held that Parliament could neither establish any other court or local tribunal, similar to courts referred to in Article 162(2) (courts of equal status), nor could it purport to confer jurisdiction to a court which is not of equal status with the High Court. The judges therefore decreed that Section 9 (b) of the Magistrates’ Courts Act, 2015 was unconstitutional and therefore null and void. However the judges of the Appeal were of the view that Parliament is empowered to enact legislation to confer jurisdiction to the Magistrates’ courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution and consequently set aside the judgment and order of the High Court declaring Section 9 (b) of the Magistrates’ Courts Act, 2015 as unconstitutional, null and void. Flowing from this decision, the magistrates’ courts have jurisdiction to hear and determine employment & labor relations claims subject to pecuniary limits. In this regard, Gazette Notice No. 6024 (supra) designated the Special Magistrates conferred with jurisdiction to hear and determine these claims.

Some quarters argue that employment & labor relations claims also include cases regarding injuries, diseases and deaths sustained in the course of employment and therefore should be heard by the Special Magistrates. However the jurisprudence set by the E&LRC in Abyssina Iron & Steel Ltd v Douglas Momanyi Ondara [2016] eKLR is to the effect that ‘ideally cases of injury at the workplace are not employment and labor relations cases. Such cases are supposed to be brought under the Work Injury Benefits Act.  Section 87 of the Employment Act is not applicable to injury cases. Work Injury cases are not employment disputes as envisaged under the Employment Act.  This explains why they were previously dealt with separately under the Workmen’s Compensation Act and now under the Work Injury Benefits Act.’ This jurisdictional dichotomy seems to be recognized by the Parliament in enactment of two (2) statutes which provide distinct dispute resolution mechanism for the two (2) causes of action. Moreover, under Gazette Notice No 9243 dated 27.07.2011 which was repealed by Gazette Notice No 6024 [supra], the Chief Justice had designated special magistrates to hear and determine matters relating to work injury related cases and offences under the specified Acts. Gazette Notice No 6024 [supra] specifically and deliberately excludes work injury related matters from the jurisdiction conferred upon the special magistrates.

Secondly, as the learned judge in Saidi Mohamed v Diamond Industries Ltd [supra] noted, section 53 of the Act intended that work injury claims are determined through a Director of Work Injury Benefits who is responsible for management of the Act. Section 2 of the same Act defines ‘Director’ to mean the ‘Director of Occupational Safety and Health Services.’ It is not clear if the Directors under section 53 and section 2 are intended to be one Director.

Quite conspicuous is that the Act does not provide an enforcement avenue in instances where an employer does not object to the compensation determined by the Director and at the same time fails to settle the compensation determined by the Director. Section 26 (4) of the Act obligates an employer or insurer against whom a claim for compensation is lodged by the Director to settle the claim within ninety (90) days of the lodging of the claim. Subsection 6 thereof in turn provides that an employer or an insurer who fails to pay the compensation claimed commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both. It is fair to remark that the Director lacks any powers to compel payment of compensation by an employer to an employee as these are not donated by the Act. Moreover, it is also fair to observe from practical experience that the Labor Office generally lacks adequate prosecutorial powers to ensure compliance with the provisions of the wide Employment and Labor Relations legislative regime where an employer commits an offence under any of the statutes governing employment matters and labor relations. It is from this informed observation that criticism as to whether section 26 can be used to compel an employer to settle a claim for compensation arises. This apparent lacuna in the statute renders it impotent in so far as ensuring settlement of claims is concerned. Thus, it would be preferable that where an employer fails to settle a claim within the time prescribed by the Act, an employee should have the right to approach the courts of law so as to obtain orders compelling the employer or the insurer to settle the Claim. Once the courts declare that an employer or insurer should pay the compensation determined by the Director then the civil execution regime comes into play to aid the employee in recovering the compensation.

Fourthly, section 51 provides that the Objection to the Director is to be in writing and in the prescribed form. However, neither the Act nor the subsidiary legislation thereto provides the prescribed form alluded to.

In addition, the textual wording of section 16 seems to suggest that in order for occupational accident or disease to be actionable under the Act, they must result in the disablement or death of such employee. A linear interpretation of this section would mean that any occupational accident or disease that does not result in disablement or death of the employee would not be actionable under the Act. Moreover, the Schedules to the Act only provide the minimum degree of disablement (percentage) that the Director may assess as a result of an occupational accident or disease. This reinforces the view that where an employee suffers no disablement or disease out of an occupational accident then he is nonsuited under the Act. Such an eventuality would be discriminatory against employees who suffer soft tissue and fracture injuries with no level of disablement or death. These employees would be left without a legal remedy; an injury with no remedy (damnum sine injuria).

It is also not clear whether there is a timeline within which the Director is to make necessary inquiries and to decide upon any claim or liability after he has received notice of an accident.

Acknowledging that work-related injury cases form a substantial portion of the cases filed at the magistrates courts, the foreseen danger that looms emerging from the jurisprudence set in Civil Appeal 133 of 2011 (supra) is that there will be an influx of appeals to the E&LRC from the Director. At the moment, it is factual to state that the E&LRC is saturated and overburdened by employment and labor claims already filed in that court. Adding to that back log will make access to justice a mirage.

CONCLUSION.

In light of the Court of Appeal judgment in Civil Appeal 133 of 2011 (supra), employees, employers, unions, advocates and all social partners in general should familiarize themselves with the dispute resolution procedure provided for under the Act. Employees should be sensitized to report all cases of injury to their employers when they occur. On their part, employers should take out insurance with their preferred insurance companies, document all reported injury cases, maintain a record of the reported cases and timeously submit them to the Director for assessment of compensation payable.

It is postulated that Courts should not strike out for lack of jurisdiction cases regarding work-related accident, injuries or deaths that were filed before the Court of Appeal judgment. These cases were filed pursuant to the judgment of the High Court in Petition Number 185 of 2008 (supra) which was the prevailing judicial authority regarding these cases up to 17.11.2017 when it was overturned by the Court of Appeal. Litigants should not be punished for filing cases guided by the prevailing decision of the High Court. Furthermore, the Court of Appeal was emphatic that the legislative practice where a new judicial forum is created to replace an existing system is to finalize all proceedings pending in the previous system before that forum where they were commenced. On the other hand, where such cases are filed after 17.11.2017 without following the procedure prescribed under the Act, then they should suffer the fate of being struck out for lack of jurisdiction.

As it apparently appears that there is dissonance amongst the Courts, legal practitioners and the litigants on the effect of the judgment of the Court of Appeal on pending work-related injury claims, the parties in Civil Appeal 133 of 2011 (supra) ought to invoke the provisions of Rule 34 (2) (d) of the Court of Appeal Rules, 2010 on settlement of terms of the decree by the court. Perhaps, this is also an issue that can be administratively addressed and tackled during the Bar-Bench meetings.

It is admirable that the Act lays out a procedure for seeking compensation on account of work related injuries, diseases and death. The procedure is complimented by simplified forms to be used in seeking redress. If the spirit of the Act is fully implemented, it might facilitate and make access to justice easier, but, the Jury is out there and only time will tell.

Nonetheless, as observed by the trial judge in Petition Number 185 of 2008 (supra), the Act has shortcomings of drafting. If it is to function as an integral law, then the Attorney General will appreciate the need for a comprehensive drafting scrutiny and reformulation. This sentiment was reiterated by the Appeal Judges in their remark that section 52 had a drafting error that ought to be remedied by Parliament.

Amongst the concerns that would fall upon the Attorney General to consider is the jurisdictional tug of war between section 16 of the Act, Section 87 of the Employment Act and Section 9 (b) of the Magistrates’ Courts Act, 2015. Delineation of pecuniary jurisdiction in work-related injury cases to the magistracy with a view to alleviating the burden placed on an already overwhelmed E&LRC is also a fertile thought to be planted in the Attorney General’s mind. There also needs to be clarity who between the Director of Work Injury Benefits and the Director of Occupational Safety and Health Services is responsible for receiving reports of accidents and carrying out investigations into such accidents and generally the implementation of the provisions of the Act. In addition, the Director ought to be clothed with sufficient and efficient prosecutorial powers in order to enable him take action against employers who fail to comply with the provisions of the Act. It is also paramount that the timeline within which the Director is to make necessary inquiries and to decide upon any claim or liability after he has received notice of an accident be prescribed. The enforcement mechanism for compelling employers to pay an employee the compensation determined by the Director also needs to be prescribed. Alternatively, due to the teething problems associated with the office of the Director, Parliament should consider substituting and transferring all the powers of the Director to a Tribunal to be established under the Act just like the Business Premises Rent Tribunal, Rent Restriction Tribunal and the Nation Environment Tribunal under their relevant Acts. The Act also calls for revision to make a provision for soft tissue injuries and fractures. There is also need to periodically review the amounts, costs and scale of fees and charges prescribed under the Act, Regulations and Schedules thereto in order to align them with the changing standards of living and to take into account the rate of inflation. Lastly, an attempt to consolidate all employment and labor relations laws into one statute should be considered. Such an effort would entail consolidating the Work Injury Benefit Act, Employment Act, Labor Institutions Act, Labor Relations Act, Occupational Safety and Health Act and the Employment and Labor Relations Court Act into one Act.