Law Society of Kenya v Attorney General [2008] eKLR

High Court at Nairobi, Justice J.B. Ojwang, May 22, 2008.

The Law Society of Kenya got a temporary reprieve when the court
directed that

suits that were filed under the repealed Workmen Compensation Act,
Cap 236, should continue to be heard under that law until the hearing
of a petition filed by LSK on 14th April 2008.

The orders were made by High Court Judge J. B. Ojwang on 22nd May
2008 following LSK's complaints that the recent Work Injury Benefits
Act, 2007, which entered into force on 20th December, 2007, has no
provision which would enable parties to transfer suits currently in
the courts to a similar juridical forum thus leaving the parties who
have pending cases in courts without a legal redress avenue.

In its petition LSK challenges the constitutionality of some of the
provisions of the new law, such as Section 16 which prevents an
employee from instituting action in court for recovery of damages for
injuries or diseases specified in the Act. The society disputes
Section 23 (1) which gives the Director of Occupational Safety and
Health Services the power to decide any claim or liability, they
argue this is akin to giving the director judicial powers which is
vested in courts.

In the application before Judge Ojwang LSK asked the court to direct
that suits pending in courts be subjected to the normal judicial
adjudicative process. An affidavit by Ms. Betty Nyabuto, in her
capacity as the LSK's secretary, stated that the following the
enactment of the new law, LSK had received numerous complaints from
its members. She stated that since the passing of the new law the
subordinate courts have consistently upheld that in view of Section
58(2) of the Work Injury Benefits Act, 2007 they would not hear any
matter covered by the Act. Consequently the courts have stood over
generally matters related to compensation of employees for work
related injuries and diseases.

The pending litigation had in each case been commenced on the basis
that the repealed Workmen's Compensation Act was in force. The Work
Injury Benefits Act, 2007, however contains no transitional
provisions. Section 58(2) of the new enactment provides: "Any claim
in respect of an accident or disease occurring before the
commencement of this Act shall be deemed to have been lodged under
this Act."

It was further averred that the limitations in the new law have
adversely affected the practice of law. To further support its
application, LSK filed several supplementary affidavits from
advocates in practice throughout the country. For instance, Mr. Peter
Mwaura Kamau, a Nairobi lawyer, stated that when the new law commenced
he was handling a case whose judgement was delivered on 8th January,
2008 in favour of the plaintiff but the plaintiff has been unable to
enforce the decree because the new law has ousted the jurisdiction of
the courts in dealing with such matters.

Another Nairobi lawyer, Mr. P. Ngunjiri Maina, in his affidavit
listed several cases which he was handling before the subordinate
courts which had became impossible to progress. Similar experiences
were recorded in the affidavits of lawyers from Mombasa, Kilifi,
Mumias and Kitale.

The application was opposed by the A-G's Principal Litigation
Counsel, Mr. Ombwayo, who contended that LSK's application was
misconceived as that it was based on a misinterpretation of the law;
LSK lacked locus standi and that section 58 did not affect pending
suits, and so was not unconstitutional

Mr. Ombwayo submitted that LSK would not suffer irreparable loss if
its prayer for stay pending hearing of the main cause was not
answered and that the on going implementation of the Work Injury
Benefits Act, 2007 ought not to be interrupted save by judgement on
the main petition.

In oral submissions before the court, Mr Ngatia, submitted that the
Work Injury Benefits Act, 2007 which was passed towards the end of
the life of the 9th Parliament, has occasioned operational
implications with a direct impact not only on the basic rights of
citizens, but also on the functioning of the judiciary as the
constitutional organ entrusted with the mandate of dispute settlement
in justiciable matters.

Mr. Ngatia stated that before the new law's date of commencement,
there were many suits pending, founded on the repealed Workmen's
Compensation Act. Employers, who were generally the defendants in
such suits, he noted, have now invoked section 58(2) of the Work
Injury Benefits Act, 2007 to stop the suits.

The plaintiffs in such suits, the learned counsel urged, had been
restrained in their use of the judicial process to resolve their
claims, without being accorded some other forum where their pending
suits could be resolved. The effect, Mr. Ngatia submitted, was that
the Work Injury Benefits Act, 2007 had denied such suitors a legal
process by which they could address their grievance.

On his part, Mr. Guserwa for COTU, an interested party in the
application, supported LSK's application and urged that all
work-injury cases filed before the date of commencement of the new
law should continue to be litigated under the repealed Workmen's
Compensation Act, and that only suits arising after that date should
be filed under the provisions of the new enactment.

While the complex issues raised had to await final determination of
the main suit, the judge noted that there was no contest that a large
number many workmen's compensation cases remained pending before
Magistrates' Courts throughout the country. In some cases, decrees
had already been issued in favour of particular parties but they had
been rendered incapable of execution.

The Judge held that the suitors in such cases would have been
exercising their fundamental-rights, as secured in Chapter V of the
Constitution of Kenya, and so they had legitimate expectations that
the judicial process would handle and conclude their cases. The
enactment of the Work Injury Benefits Act, 2007, so far as it goes,
would be a normal exercise of the legislative power of the Kenyan
Parliament, in accordance with the terms of s.30 of the Constitution
of Kenya.

However, room for conflict between the Constitution's empowerment to
Parliament, on the one hand, and the Constitution's safeguards for the
citizen's rights, on the other: and whenever such a conflict occurs,
then, ordinarily, it is the High Court's mandate to make a sensible
interpretation, and to declare the correct understanding of the
Constitution.

"I have no doubts that irreparable harm will in the first place
result for the suitors whose cases before the Magistrates' Courts now
stand in limbo; this harm, by inference, may be attributed to the Law
Society of Kenya, the organization of Advocates who have the conduct
of the pending cases" the judge stated.

In his concluding remarks the judge found that "the lower risk of
injustice requires that the suits now pending before the Magistrates'
Courts, which have implications for the accrued rights of the suitors,
ought to be resolved and concluded without delay."

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Reported by Esther Nyaiyaki

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