BY PRUDENCE WANZA- The Supreme Court has given massive powers to Labour officers in the determination of employee disputes in Kenya.

In a 29 paged judgement delivered on 3rd December 2019, the apex court, presided over by its President, Chief Justice David Maraga says labour offices are best placed to adjudicate disputes.

The move now places workers at risk of manipulation by labour officers who in many cases side with employers.

The Law Society of Kenya (LSK) was the petitioner in the case in which they sought to challenge the court of appeal decision dated November 17,2017 by a three judge bench.

LSK was unsatisfied with the court of appeal judgement that reversed the orders of the high court that had declared the Work Injuries Benefit Act (WIBA) null and void citing inconsistency with the former constitution.

Justice Jackton Ojwang who was a high court judge then, had considered the evidence and submissions of the parties and in his Judgement declared the Act as being inconsistent with the provisions of the retired Constitution.

In their submissions LSK argued that a section of the act did not uphold an employee’s right to file an action for the recovery of damages from an employer in respect of any occupational accident or disease resulting in to disability or even death of an employee.

Among the much contested sections of the Act was section 16 which states;

 “No action shall lie by an employee or any dependant 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 this Act in respect of such disablement or death.”

And section 23 that provides;

(1) 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 this Act.

(2) An inquiry made under subsection (1) may be conducted concurrently with any other investigation.

(3) An employer or employee shall, at the request of the Director, furnish such further particulars regarding the accident as the Director may require.

(4) A person who fails to comply with the provisions of subsection (3) commits an offence.”

The five judge bench consisting of CJ David Maraga, Mohamed Ibrahim,Smokin Wanjala, Njoki Ndungu and Isaac Lenaola upheld the judgement stating that some of the sections were inconsistent with those in former constitution and therefore declared null and void.

In the judgment they said that section 16 of the Act only provides legal remedy and the affected parties by the decisions of a director can still seek judicial assistance for the court to make a determination on matters raised.

They further ruled that the Act does not permanently limit the right to access courts by an aggrieved party and It is only the initial point of call for decisions in workers’ compensation.

“A party is not left without access to justice nor do employees or employers have to result to self-help mechanisms. What the section does, is that it allows the use of alternative dispute resolution mechanisms to be invoked before one can approach a court.” States the judgment

“It is our finding, therefore, that neither Section 16, 23, nor 52(1) of WIBA can be said to be inconsistent with the former Constitution or the Constitution 2010.”

The five judge bench faulted the high court judge saying he did not take judicial notice of the pendency of the appeal desite being aware of it adding that in his own judgement he had stated that an appeal ahd been preferred to the apex court.

They further stated that Justice Ojwang ought to have held his horses and acknowledge the hierarchy of the courts and await the Supreme Court’s decision before rendering himself.

 As we perceive it, his judgment has created unnecessary confusion in the application of WIBA and cannot be allowed to stand as it may [may or is]? Also be contrary to this Judgement. The findings and Orders expressed in that judgment must therefore be read in the context of the decision of the Court of Appeal and our finding and Orders in this appeal. That is all there is to say on that matter.

Supreme Court decisions cannot be appealed against.