[2023] KEHC 26364 (KLR)

Comply Industries Limited v Monyoncho (Civil Appeal 168 of 2017) [2023] KEHC 26364 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26364 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 168 of 2017

HM Nyaga, J

December 4, 2023

Between

Comply Industries Limited

Appellant

and

Charles Ogamba Monyoncho

Respondent

(Being an appeal from the judgment and decree of Hon. J.B. KALO (CM) delivered 11th December, 2017)

Judgment

1. This judgment determines the appellant’s appeal filed on 22nd December, 2017 vide Memorandum of Appeal dated 19th December, 2017.

2. Initially, the Appeal related only to the issue of quantum. However, when the appellant field its submissions, it raised the question whether the trial court had the requisite jurisdiction to hear the case.

3. In summary the facts of the case are as follows. The respondent, who was the plaintiff before the trial court, pleaded that he was the authorized employee of the Appellant and that on 19th June, 2012 while on duty; he was hit and seriously injured by a beam of wood. He attributed the injuries he sustained to the negligence on the part of the Appellant, its servant, agents and/ or breach of contract and terms of the employment between him and the Appellant. He prayed for judgment against the Appellant for general damages; special damages of Kshs, 6,450/=; and costs and interest of the suit.

4. The Appellant filed the statement of defence on 19th October, 2012 in which it denied the entire claim by the Respondent. Further and without prejudice the appellant stated that if the alleged industrial accident involving the Respondent did occur, which it denied, then the same was caused or substantially contributed to by the Respondent’s own negligence. It prayed that the suit be dismissed with costs.

5. The issue of liability was however settled by consent in the ratio 75:25 in favour of the respondent. After conducting a hearing, the trial magistrate in his judgment awarded the Respondent Kshs 500,000/- for General Damages, Special Damages of Ksh. 6450/= Costs of the suit and interest . The said judgment was subject to twenty-five (25%) contributory negligence.

The Appeal 6. It is that judgment that gave rise to this appeal where the appellant complains that:i.The Learned Trial Magistrate erred in law and in fact in awarding excessive General Damages not in tandem with the Respondent’s injuries.ii.The Learned Trial Magistrate erred in law and in fact in awarding excessive General Damages that are not in tandem with current Judicial trends and settled legal principles.iii.The Learned Trial Magistrate’s assessment of damages is inordinately high and amounts to an erroneous estimate of damages.iv.That the Learned Trial Magistrate’s assessment of damages is not in tandem with previous Judicial awards for similar injuries.

7. The Appellant thus prayed that :i.The Trial Magistrate’s Judgement dated 11th December, 2017 be reviewed and set aside.ii.This Honourable Court do reassess the General Damages applicable in consonance with the Respondent’s injuries, decided authorities and settled Principles.iii.The Respondents to meet the Costs of this Appeal.

8. The Appeal was canvassed by way of written submissions. The Appellant’s Counsel filed written submissions on 31st May, 2021 whereas the Respondent’s counsel filed written submissions on 12th June, 2023.

Appellant’s Submissions 9. The Appellant submitted on two issues. Namely:-i.Whether the Honourable Magistrate Court had jurisdiction to determine the matter.ii.Whether the Learned Trial Magistrate erred in Law in assessing General Damages and arrived at an award that was inordinately high.

10. On the first issue, the Appellant Counsel submitted that the Trial Magistrate did not have jurisdiction to determine a work related injury claim on 11th December, 2017. The counsel referred to the case of Kenya Ports Authority vs Modern Holdings [E.A] Limited [2017] eKLR for the proposition that the jurisdiction issue can be raised at any stage of the proceedings even on Appeal and similarly the Court of Appeal decision of Attorney General vs Law Society of Kenya & another [2017] eKLR for the proposition that Magistrate’s Court do not have jurisdiction to determine work- injury related claims at the time the trial Magistrate delivered its Judgement.

11. The Counsel citing the Locus Classicus case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR submitted that the Honourable Magistrate ought not to have taken another step and its Judgment entered for want of jurisdiction amounted to nothing.

12. He argued that in Attorney General vs Law Society of Kenya & Another(Supra) the court held that work injury benefits claims should be lodged before the Director as provided by WIBA ,2007 and only those claims that were pending hearing and determination, that were commenced under the Workmen’s Compensation Act or common law, prior to the entry into force of the Work Injury Benefits Act (WIBA),2007 could be heard with finality and that under Section 16 of the Act expressly stated that no action should lie by an employee against an employer and that no liability should attach against an employer other than as provided by the Act.

13. To further buttress the proposition that magistrates court have no jurisdiction to hear and determine WIBA claims , the Appellant relied on the cases of Law Society of Kenya vs Attorney General & another [2019] eKLR, Longonot Horticulture Limited vs James Wakaba Maina [2019] eKLR, Manuchar Kenya Limited vs Dennis Odhiambo Olwete [2020] eKLR, Bloomingdale Rose (K) Limited vs Gladys Kathure Nteere [2018] eKLR, Mohamed Hamud Sheikh vs Islamic Relief [2019] eKLR & Elizabeth Njeri Nderi & another vs Highway Carriers Limited [2019] eKLR.

14. Regarding the second issue, the Appellant on a without prejudice basis submitted that the sum of Ksh. 300,000/= would suffice as general damages in light of the injuries sustained by the Respondent. To buttress its submissions reliance was placed on the following cases: -a.Wycliffe Omurwa Masanta vs Easy Coach Limited & another [2019] eKLR where the High Court upheld the Lower court award of Ksh.500, 000/= as general damages for a claimant who had sustained Posterior dislocation of the Right Hip joint, Transverse fracture of the Right Fibula, Head injury scale 14/14, Soft tissue injuries of the forehead, right periorbital hematoma, Laceration on the lower lip (right side) and Deep laceration and swelling of the left leg.b.Maina Onesmus vs Charles Wanjohi Githome [2019] eKLR- where the High Court sitting on Appeal set aside the Trial Magistrate General award of Ksh. 600,000/= and substituted it with Ksh. 350,000/= for a claimant who had sustained fractures of the mid shaft humerus, and condyles, and fragment fracture of the shoulder girdle and whose degree of injury was assessed as harm.c.Civicon Limited vs Richard Njomo Omwancha & 2 others [2019] eKLR-. where the court on appeal reduced general damages for 2nd Respondent who suffered deep cut wound on the left ear lobe, tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, bruises on the left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation on the left hip joint from Ksh. 1,000,000/= to Kshs. 450,000/- and the 3rd Respondent for fracture of four upper teeth, cut wound on the upper and lower lips, swollen and tender upper lip, bruises on the chin, dislocation of the left shoulder, bruises on right knee, fracture of the right tibia and fibula with 30% permanent disability from Ksh. 1,300,000/= to Ksh. 500,000/=d.James Murithi Ireri vs Cyprian Mugendi Igonga & 2 others [2016] eKLR wherein the trial Court’s award of Kshs. 400,000/= was upheld for the claimant who had suffered a compound communited fracture of the left tibia and fibula bone, soft tissue injuries over the left fore arm, upper back and face.e.Sammy Ngugi Mugo vs Mombasa Salt Lakes Ltd & Another [2014] eKLR where the High Court awarded Ksh. 450,000 /= as general damages for a claimant who had sustained fracture of the left arm and had undergone surgery and screws and plates were implanted.

Respondent’s Submissions 15. The Respondent submitted that this court has jurisdiction to hear and determine this matter pursuant to the directions issued by the Chief Justice on 28th April,2023 vide gazette Notice 5476.

16. Regarding General damages, the Respondent urged this court to uphold the trial court’s award of Kshs. 500,000/= as general damages.

17. To support his submissions, he relied on the following cases: -a.Beatrice Wairimu Wandurua vs C. Dorman Limited [2009] eKLR where the court of appeal awarded Kshs. 550,000/= as general damages for the appellant who had sustained compound fractures of the left tibia and dislocation of the left ankle joint.b.Vincent Mbogholi vs Harrison Tunje Chilyalya [2017] eKLR where the Appellate court upheld the trial court’s award of Ksh. 500,000/= as general damages for a claimant who had sustained a fracture of the left tibia bone along with soft tissue injuries.c.Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR the High court substituted an award of Kshs. 800,000/= with Kshs. 500,000/= for a claimant who had sustained fracture of tibia fibula and right fibula bone and a blunt injury to the right ankle.

Analysis & Determination 18. The preliminary issue for determination in this appeal is whether the trial Court had the necessary jurisdiction to hear and determine the suit.

19. It is factual that the issue of jurisdiction was not disputed before the Magistrate’s Court or in the memorandum of appeal. It is also a fact that the parties submitted themselves to the jurisdiction of the Magistrate’s Court and they pleaded as much. However, the issue of jurisdiction as correctly submitted by the Appellant can be raised at any stage even on an Appeal.

20. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as“…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”.Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.

21. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

22. The guiding principles to all courts is that where a suit is filed in a court that lacks jurisdiction to hear and determine the suit, then the suit would be deemed a nullity as per the decision of Nyarangi J A in the case of Owners Of Motor Vessel “Lilian S” vs Caltex Oil (K) Ltd [1989] KLR 1 that:-“Jurisdiction is everything without which a court of law has no power to make one more step where a court of law has no jurisdiction as there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction.”

23. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR stated interalia that Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

24. In Lemita Ole Lemein vs Attorney General & 2 Others [2020] eKLR, Karanja, J.A. stated:“In my view, jurisdiction is primordial and must exist right from the filing of a case to determination. The issue of jurisdiction need not be raised by the parties to a suit for the court to address its mind to it. It is incumbent upon every judicial or quasi-judicial tribunal or court to satisfy itself that it has jurisdiction to entertain a matter before settling down to hear it. In essence therefore, a court or tribunal should not wait for a party to move it on the issue of jurisdiction for it to determine the issue. The Court can suo motu determine the issue even without being prompted by a party. Just like you cannot confer jurisdiction even by consent of the parties, you cannot confer jurisdiction by ignoring the issue or sidestepping it. It is omnipresent and cannot be wished away. Moreover, it being a point of law, the issue of jurisdiction can also be raised at any stage; in the trial court, first appeal or even on second or third appeal.

25. The Supreme Court of Nigeria, in Petrojessica Enterprises Ltd & Another vs Leventis Technical Co. Ltd [1992] 5 NWLR, (Pt. 244) 675, which has been cited with approval by our courts, rendered itself thus, on jurisdiction:“Jurisdiction is the very basis on which any tribunal tries a case? it is the lifeline of all trials. A trial without jurisdiction is a nullity…[A]Court cannot arrogate to itself a jurisdiction it has not got. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court, a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction? But once it is apparent to any party that the Court may not have jurisdiction, it can be raised, even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”

26. (See also Jamal Salim vs Yusuf Abdi & Another [2018] eKLR, and Local Authorities Provident Fund vs Joseph Njogu Gathu & Another [2016] eKLR. In Nyangau vs Nyakwara [1986] KLR 712

27. Similarly, in Kenya Commercial Bank vs Osebe [1982] KLR 296, it was held that although an appeal must be confined to the points of law raised and determined by the trial court, there were two exceptions to that rule, namely, where the trial court commits an illegality or acts without jurisdiction.

28. The Appellant herein submitted that the Magistrate did not have jurisdiction to determine a work related injury claim at the time it delivered its judgement.

29. The respondent’s work-place injury in issue is said to have occurred on 19th June, 2012, long after WIBA commenced on 02. 06. 2008. It was filed before the Magistrate court on 27th August, 2012 and trial court delivered its judgement on 11th December, 2017.

30. The Court of Appeal in Nairobi Civil Appeal No. 133 of 2011 – Attorney General vs Law Society of Kenya & Another (supra), upheld the constitutionality of sections 4, 16, 21(1), 23(1), 25 (1) (3), 52 (1) (2) and 58 of the Work Injury Benefits Act, 2007 (WIBA). The court held that the provisions under WIBA require injuries under the WIBA to be adjudicated upon by the Director of Occupational Safety and Health Services (the Director) and expressly bars institution of court proceedings by an aggrieved employee save under the provisions of the Act. The right to approach the courts as the first point of call is curtailed and the Employment and Labour Relations Court is designated as an appellate court from the decision of the Director. The Court of Appeal stated;“We find, from the submissions of the respondents that at the commencement date of the Act there were before the Courts, pending determination, several work-related accident claims brought under the repealed Workmen’s Compensation Act (Cap 236) or the common law. With respect, we agree that 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.”

31. The matter went to the Supreme Court which delivered its judgment in Law Society of Kenya vs Attorney General & Another [2019] eKLR on 03. 12. 2019. The court dismissed the appeal and upheld the above decision by the Court of Appeal the Court. At paragraph 85 of its judgment it stated: -“In agreeing with the Court of Appeal, we note that is not in dispute that prior to the enactment of the Act, litigation relating to work-injuries had gone on and a number of suits had progressed up to decree stage, some of which were still being heard, while others were still at the preliminary stage. All such matters were being dealt with under the then existing and completely different regimes of law. We thus agree with the Appellate Court that claimants in those pending cases have a legitimate expectation that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked. However, were it not for such legitimate expectation, WIBA, not being unconstitutional and an even more progressive statute as we have shown above, we opine that it is best that all matters are finalised under section 52 aforesaid.”

32. The Court of Appeal and the Supreme Court protected cases filed before WIBA came into operation and on account of the doctrine of legitimate expectation.

33. In Manuchar Kenya Limited vs Dennis Odhiambo Olwete [2020] eKLR Ndolo J held that;“The upshot of the decision by the Court of Appeal as confirmed by the Supreme Court is that all work injury claims arising after enactment of WIBA in 2007 were to be processed within the procedure set out in the Act and the original jurisdiction of the courts was thus ousted.”

34. In Longonot Horticulture Limited vs James Wakaba Maina [2019] eKLR Mbaru J held that after enactment of WIBA a shift was created that all industrial accidents and diseases are legally to be reported to the Director and not filed with the lower court.

35. On 09. 02. 2018, the Employment and Labour Relations Court(ELRC) in Saidi Mohamed vs Diamond Industries Ltd [2018] eKLR struck out a statement of claim that had been filed on 17. 03. 2017 in which the claimant was claiming general and special damages for injuries sustained in the course of duty but had failed to comply with the WIBA procedure. Rika J stated,“The Court does not agree with the Respondent that it is divested of jurisdiction under the Work Injury Benefits Act. What it does not have is primary jurisdiction, which vests in the Director of Work Injury Benefits. The Court’s jurisdiction is secondary. 22. On the Claimant’s submission that ELRC has exclusive jurisdiction on employment and labour relations disputes under Article 162(2) of the Constitution, Section 87 of the Employment Act, and Section 12 of the E& LRC Act, the answer must be that this exclusive jurisdiction is exercised in accordance with the Law. 23. There is exclusive jurisdiction, but only of an appellate nature in work injury disputes, relating to disablement or death of an employee in the course of work. 24. The Court of Appeal in its decision non 17th November 2017, emphasized access to Court, though a right, may be limited by law, Courts may be divested of certain powers through statutes; and jurisdiction can only be exercised as given by the Constitution, Statute, or both.”

36. As can be seen, there has been no concurrence on the matter.

37. To address the uncertainties in the law relating to these type of claims, on 28th April, 2023 vide gazette Notice No. 5476 the Chief Justice issued directions in regards to WIBA claims. They were inter alia;“Claims Filed after Commencement of WIBA but before the Supreme Court decision7. Taking into account that High Court vide its judgment dated 4th March, 2009 in Law Society of Kenya v. Attorney General & Another (2009) eKLR declared some of the provisions in WIBA including Sections 16, 23(1) and 52, which prescribe the procedure for lodging claims under the Act unconstitutional. Consequently, the said declaration of nullity created a legitimate expectation that claimants could directly lodge claims for compensation for work related injuries and diseases in court. As such, litigants cannot be penalized for relying on the declaration of nullity, as appreciated by the Supreme Court in Attorney-General and 2 Others v Ndii and 79 Others; Prof. Rosalind Dixon and 7 Others (Amicus Curiae) (Petition 12, 11 and 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) to lodge their claims in court.Therefore,(a)All claims with respect to compensation for work related injuries and diseases filed after the commencement of WIBA and before the Supreme Court decision at the Employment and Labour Relations Courts or the Magistrates’ Courts shall proceed until conclusion before the said courts.(b)All pending judgments and rulings relating to compensation for work related injuries and diseases before the Employment and Labour Relations Court and the Magistrates’ Courts shall be delivered by the same court.”

38. Although the directions came into force on 28th April 2023, the spirit of those directions must be taken into account and be applied in this case.

39. The cause of action in this case arose on 19th June 2012. The suit was filed on 28th August 2012. The decision of the Supreme Court was on 3rd December 2019. In view of the above directions, I find that the magistrate had the requisite jurisdiction to hear and determine the matter.

40. I will now determine whether the award by the lower court was commensurate with the injuries suffered and comparable to awards for similar injuries.

41. The Court of Appeal in Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”.

42. As for the quantum of award, the Court of Appeal’s decision in Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR, gives guidance where that Court held:“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled”.

43. This court can only interfere with the award of general damages if it finds that the trial court proceeded on a wrong principle or if the award was excessively high or low. In this respect, I am minded to rely on the decision of Butt vs Khan [1981] KLR 349 where it was held as follows;“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

44. Similarly, in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR the court stated as follows: -“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

45. Therefore, this court will not interfere with an award of damages by the lower court merely because it would have arrived at a different decision.

46. The injuries sustained by the Respondent are not disputed. The Respondent pleaded that he sustained; Fracture of the Right Medial and Lateral Malleoli.

47. Dr. W. Kiamba, who examined the Respondent and prepared the medical report, confirmed the Respondent sustained the above injuries and in addition indicated that he still suffered from pain in the right ankle joint and could not walk long distances. He classified the degree of injury as grevious harm and awarded a temporary disability of 4 months and a permanent disability of 10%.

48. The trial court, in awarding Ksh. 500,000/= as General Damages, was guided by the case of Vincent Mbogholi v Harrison Tunje Chilyalya (supra) where the claimant sustained Fracture of the left tibia leg bone (medial malleolus); Blunt object injury to the chest and left lower limb; & Bruises on the left forearm, right foot and right big toe and the appellate court upheld the trial court award of KSH. 500,000/= as general damages.

49. This case is relevant since the injuries sustained by the claimant were almost similar to those sustained by the Appellant herein.

50. I have also referred to the cases of Zachariah Mwangi Njeru vs Joseph Wachira Kanoga [2014] eKLR where a Plaintiff who suffered a fracture of tibia/tibula was awarded ksh.400,000/= in general damages & Clement Gitau vs G K K [2016] eKLR, where the Plaintiff sustained a fracture of the tibia/fibula and bruises on the neck. An award of Kshs. 600,000/= was upheld on appeal.

51. In my view the learned trial Magistrate rightly considered all the relevant factors in this case in arriving at her decision. These factors are the expert opinion by the doctor, the authority in which award for similar injury was granted and the inflation rate in the country at the time of delivering the judgment.

52. I find the award of Ksh.500,000/= as General Damages was not manifestly excessive as to warrant the interference by this court. I am of the view that an award was within the range of similar or comparable cases.

53. Consequently, I find that that this appeal lacks merit and it is dismissed with costs.

54. Orders Accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF DECEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A KipsugutMr. Kirimi for Ms Kamau for AppellantN/A for Respondent