[2022] KEHC 3132 (KLR)

China Road and Bridges Corporation (K) Ltd v Kafuta (Civil Appeal E034 of 2021) [2022] KEHC 3132 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3132 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E034 of 2021

JN Onyiego, J

June 10, 2022

Between

China Road and Bridges Corporation (K) Ltd

Appellant

and

Joseph Mwakio Kafuta

Respondent

(Being an appeal from the ruling of Fredrick Nyakundi the Senior Resident Magistrate Court at Voi-Made in SPMCC No. 236 of 2016 delivered on 11th May 2021)

Judgment

1. Through a plaint dated 29th August 2016, Joseph Mwakio Kafuta (hereafter the respondent) filed a suit against China Road and Bridges Corporation(K) limited (hereafter the appellant) seeking;(a)General damages for pain, suffering and loss of amenities(b)Special damages of Kshs 3,000(c)Costs of the suit(d)Interest in (a) and (b) at court rates(e)Any other relief that this honourable court may deem fit and just to grant

2. The respondent’s claim against the appellant (defendant) was that at all material times relevant to this case, he was a contracted employee to the appellant. That on or about October 21, 2015, he was in the course of his employment removing dough from a baking machine operated and managed by the appellant after the machine went off and suddenly went on thus trapping his left hand hence causing him serious injuries. That the injuries were occasioned by the negligence and or breach of employment terms thereof on the part of the appellant, its agent, employee and /or servant.

3. That as a consequence, he suffered; gross cut injuries on the left palm; multiple tendon injuries of the left hand; and multiple deep cuts on the 2nd to 5th digits of the left hand.

4. On their defence dated October 3, 2016, the appellant denied every allegation of negligence on their part. They denied the allegation that the respondent was their employee. However, on a no prejudice basis, they stated that if proven that the respondent was their employee, then, the injuries suffered were as a result of his negligence and not theirs. On jurisdiction, they admitted the same on a no prejudice basis.

5. After exhausting the pre-trial processes, the matter proceeded to trial culminating to delivery of judgment on January 28, 2021 in favour of the respondent. Prior to entry of judgment, liability was by consent dated October 8, 2020 apportioned in the ratio of 80% to 20% in favour of the respondent and the same adopted as an order of the court on 24th September 2020. Parties then proceeded to submit on quantum culminating to the award of a sum of kshs 450,000 as general damages for pain, suffering and loss of amenities. It also awarded special damages of kshs 3,000 making a total of kshs 453,000 less 20% contributory negligence leaving a balance of kshs 362,400.

6. Subsequently, the appellant filed a notice of motion application dated April 12, 2021 seeking; stay of execution of the judgment pending hearing and determination; court be pleased to recall, review or set aside court’s judgment delivered on January 28, 2021. The application was premised on grounds that; the matter had proceeded exparte; the applicant had moved expeditiously after gaining knowledge of the suit; there is sufficient cause to review the application; plaintiff will not suffer prejudice as he will have an opportunity to ventilate his case before a proper forum.

7. In the affidavit in support sworn on April 12, 2021 by Mr. Olwande counsel for the applicant, it was averred that pursuant to supreme court decision in petition number 4 of 2019, between LSK vs A.G and COTU, the court was categorical that injury matters arising out of injuries sustained while in employment were supposed to be heard by the director of labour as provided under the work injuries benefits Act hence the correct forum to have filed this suit.

8. After arguing the application, the court dismissed the same on May 11, 2021 arguing that; the applicant/appellant had not met the threshold for review pursuant to order 45 of the CPRS. Aggrieved by the said ruling, the appellant filed a memorandum of appeal dated June 14, 2021 citing two grounds as follows; that the impugned judgment was entered without jurisdiction and that; the court erred by holding that the appellant ought to have appealed rather than file a review application.

9. By consent, the appeal herein was argued through written submissions. The appellant filed their submissions on September 16, 2021 through the firm of Omwenga, Mogaka and Mabeya Advocates. On the other hand, the respondent also filed his through the firm of Kertiony advocates on December 20, 2021.

10. It is the appellant’s / applicant’s submission that the learned trial magistrate failed to properly exercise his discretion by reviewing the impugned judgment. To advance the proposition that the court had discretion to review the orders, counsel referred to the holding in the case of Shanzu investment limited v Commissioner of Lands (1993)e KLR.

11. Learned counsel further went on to submit that the fact that the case was heard and determined without raising the issue of jurisdiction does not in itself confer jurisdiction where there was none. To buttress that fact, counsel referred to the case of Kenindia Assurance company Limited vs Otiende(1991)KLR38. To that extent, counsel contended that a claim over compensation against an employee is a subject for determination before the director for labour

12. It was counsel’s submission that jurisdiction flows from the constitution or statute and that a court cannot arrogate itself jurisdiction which it does not have. In that regard, the court was referred to the holding in the case of Samuel Kamau Macharia and another v Kenya Commercial Bank Limited & others(2012)e KLR.

13. On his part, the respondent submitted that the court was seized of the jurisdiction to determine the matter a fact that was admitted by the appellant in their defence. That the case did not proceed exparte as liability was entered by consent and submission on quantum done. That the only remedy the appellants had was to appeal and not to seek review.

14. It was counsel’s further submission that the appellant did not meet the threshold required for review under order 45 of the CPRS which provides that; there must be proof of discovery of something important or new evidence and that the application is filed timeously. To fortify that position, reliance was placed in the holding in the case of Francis Origo & Another v Jacob Mungala C.A NO. 149 of 2001 and Ruth Kwachimoi & Another v Charles Nalika & Another (ELC Case Number 141 of 2013). It was Mr. Kertoiny’s submission that the case the subject of this suit was filed before the Supreme Court decision between Law Society of Kenya v Ag and COTU Petition Number 4 of 2019 hence the court had Jurisdiction.

15. I have considered the appeal herein, grounds of appeal and rival submissions by both counsel. The only issue that arise for determination is; whether the trial court properly dismissed the application for review. According to the trial court, the case was determined with the participation of all parties; the issue of jurisdiction should have been raised earlier enough a s a preliminary objection and not during execution stage; that the supreme court decision did not affect the instant case and; that the grounds cited can only apply on appeal and not review.

16. The law governing review of court’s orders or decisions is clearly set out under order 45 rule 1 of the CPRS. A party seeking a review order in his favour must establish that; there is discovery of new and important matter or evidence which after the due exercise of diligence was not within his knowledge or could not be produced by him when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record; the application is filed within reasonable time and; that security for due performance is deposited or for any other sufficient reason.

17. The above position was succinctly captured in the case of Muyodi vs Industrial and commercial development corporation and another (2006)1EA 243. It was therefore upon the appellant to prove the said ingredients set out under the said provision. Among the reasons stated for review is that the case had proceeded exparte. This is not correct as the record would bear testimony that the law firm of Olwande all through represented the appellant. Parties entered judgment by consent on liability and later submitted on quantum. This ground was therefore properly dismissed.

18. The second ground raised was that of jurisdiction. From the defence filed by the appellant, jurisdiction was admitted hence entry of Judgment on liability by consent. I do agree with the learned magistrate that jurisdiction should have been raised as a preliminary issue before determination of the suit. In this regard I am guided by the decision in the case of Owners of the Motor Vessel “Lillian S” VS Caltex Oil(Kenya )LTD(1989) e KLR where the court held;“A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter has been heard and determined ‘’

19. Indeed, jurisdiction is everything and without it, a court must down its tools and move no further step. See owners of the Vessel Motor(supra). Is the question of jurisdiction a ground for review? The answer is not. Lack of jurisdiction is a substantive ground for appeal and not review. Indeed, review should not be used to substitute an appeal. See Joseph Kamenju Mwaura vs Sammy Ngure Muthinji(2019)e KLR where the court stated that;“…a review is not a substitute for an appeal”

20. It is clear that the trial court could not review the orders made in its judgment as that would amount to sitting on its own judgment as an appellate court. It is trite that once a court has passed judgment, it becomes functus official and cannot revisit its judgment on merit or purport to exercise judicial power over it. See Menginya Murgani vs Kenya revenue Authority (2014) e KLR.

21. It has been said time and again in various judicial decisions that a court should exercise extra caution when reviewing its judgment and that it should only be done with circumspection rest it risks sitting on its own decision as an appellate court. In advancing that position I am guided by Benjoh Amalgamated Ltd vs Kenya Commercial Bank Limited (2014)e KLR.

22. As to whether the Supreme Court decision in Petition Number 4 of 2019 between Law Society of Kenya vs Attorney General &another (2019) e KLR clearly defined the position that work injury related claims can only be litigated before the director labour department pursuant to the relevant provisions of the Work Injury Benefits Act commonly known as (WIBA), it is clear from its judgment pronounced on 3rd December 2019. However, the court upheld the court of appeal’s decision on the same matter rendered on 17th November 2017 which overturned the high court decision which had declared certain sections of WIBA ousting court’s jurisdiction on such claims as unconstitutional.

23. Until 17th November 2017 when the court of appeal overturned the high court decision, employment injury related matters were according to the court of appeal decision which the supreme court concurred with were properly filed before ordinary courts. Any claim filed before a court of law prior to the said court of appeal judgment was therefore properly filed. In that context, the suit herein having been filed the year 2016 was and still is properly before a competent court. For those reasons, the trial court was justified to dismiss the review application on that ground.

24. Guided by the above case law, I concur with the learned magistrate that the ground of lack of jurisdiction was only sufficient to file an appeal and not review. In a nut shell, it is my finding that the application for review of the trial court’s judgment was without merit hence properly dismissed. Accordingly, the appeal herein is dismissed and the orders of the trial court upheld. Regarding costs, the same is awarded to the respondent.

DATED SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 10TH DAY OF JUNE 2022. ......................J.N. ONYIEGOJUDGE