In an interesting twist, the High Court of Kenya has issued a conservatory order in the form of a stay order staying the operation of the provisions of section 16, 23, 53 (c) and 53 (d) of the Work Injury Benefits Act, 2007 and to give interim relief allowing all cases by any litigants in the Magistrate's courts of the Republic of Kenya arising from injuries at places of work be allowed to proceed for hearing, mention and/or any action in furtherance of the hearing and determination and/or conclusion and enforcement of the judgment delivered in the said cases pending the hearing and determination of the constitutional petition filed in court. We have not been able to get hold of the full ruling to analyze the reasons for the same. However, it is pertinent to note as follows: 1. The order runs directly counter to a ruling delivered in 2017 by the Court of Appeal of Kenya, in the Attorney-General vs. the Law Society of Kenya and another. This appears to violate the first principles of stare decisis, i.e. that all courts are bound by the decision of a higher court. The Court of Appeal is superior to the High Court. 2. It is not clear how the High Court clothed itself with jurisdiction in an employment and labour relations matter, notwithstanding article 162 of the Constitution of Kenya. Employment and labour relations matters are by the Constitution and statute outside the jurisdiction of the High Court. 3. An appeal is said to be pending in the Supreme Court against the decision of the Court of Appeal referred to in bullet 1, and it would appear that the High Court's decision is sub judice. 4. The decision of the Court of Appeal referred to in bullet 1 seems to have disrupted the livelihood of many legal practitioners. The substantive application will be heard on the 17th of October, 2018.
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