https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12197

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E098 OF 2023** **EUTICUS NDEI GAITA (Suing as the father and** **next friend of James Githinji Ndei)..............................................................…APPELLANT** **VERSUS** **PETER MAINGI…….………....……........…..…………...………………..RESPONDENT** *(Being an appeal from the Ruling of Hon. Grace Waithira (R.M.) in Kerugoya CMCC No. E006 of 2023 delivered on 30.10.2023)* **JUDGMENT** 1. By a Plaint dated 24/1/2023, the Appellant sued the Respondent seeking general damages for the injuries suffered and pain and suffering under the Work Injury Act, special damages and costs of the suit plus interest. The Appellant pleaded that on 5/12/2020, in the course of employment by the Respondent, James Githinji Ndei was injured to the extent of being paralyzed solely due to the Respondent’s negligence. 2. The Respondent denied the claim vide his statement of defence dated 13/2/2023 and prayed for its dismissal. 3. The Respondent further raised a Notice of Preliminary Objection on 8/6/2023 on the grounds that: 1. *This Court lacks the requisite jurisdiction to hear and determine the Plaintiff’s Claim by virtue of Section 16, 23 and 53 of the Work Injury Benefits Act, 2007 (WIBA) and on account of the Practice Directions issued by the Honourable Chief Justice through Gazette Notice No. 5476 on the 28th April, 2023.* 2. *The cause of action allegedly arose in December 2020 and the claim was brought in January 2023, this is long after the Supreme Court decision on procedure and conduct of work injury claims, and this Court ought not to entertain this claim having been filed contrary to the aforementioned statutory provisions and practice directions.* 3. *This Court lacks the requisite geographical jurisdiction to hear and determine this suit as required by Section 15 of the Civil Procedure Act (Cap. 21 Laws of Kenya) as both parties are resident in Muranga County.* 4. *The suit is fatally defective, bad in law and an abuse of the court process and therefore the same should be struck out with costs to the Defendant.* 4. In its impugned ruling, the trial court upheld the Preliminary Objection and struck out the suit with costs. **The Appeal** 1. On appeal, the Appellant filed his memorandum of appeal dated 21/11/2023 raising 4 grounds as follows: 1. *The learned Senior Resident Magistrate erred in law and fact by Ruling that the suit in the lower court was filed in the wrong forum by virtue of section 16, 23 and 53 of the Work Injury Benefits Acts 2007 while the converse is true.* 2. *The learned Senior Resident Magistrate erred in law and fact by failing to find that the dispute herein had been referred to the Director of occupational safety and Health services who declined to entertain it and such refusal could not be appealed in the Employment and Labour relations court as there was no award and/or dismissal of the claim and therefore the learned senior resident arrived at an erroneous decision.* 3. *The learned Senior Resident Magistrate erred in law and fact in finding that she had no jurisdiction to hear the suit filed in the lower court while the converse is true.* 4. *The learned Senior Resident Magistrate erred in law and fact by failing to appreciate that the suit filed in the lower court was based on the tort of negligence and therefore the Director of occupational safety and health services did not have the requisite jurisdiction and/or mandate to determine the suit.* **Duty of the court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See ***Selle v Associated Motor Boat Co. & others [1968] E.A. 123***). **Submissions on Appeal** 1. The Appellant cites ***Selle v Associated Motor Boat Co. [1968] EA 123***, on the duty of the first appellate court. He faults the trial court for failing to find that the dispute had been referred to the Director of Occupational Safety and Health Services who declined to entertain it, and such refusal could not be appealed against in the Employment and Labour Relations Court as there was no award and/or dismissal therefrom. He urges that by the time he filed his case in January 2023, the High Court judgment of 2009 was applicable which had rendered the provisions of WIBA unconstitutional, and prays for the appeal to be allowed. 2. The Respondent cites ***Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696, In the Matter of Interim Independent Electoral Commission [2011] eKLR and Oraro v Mbaja (2005) eKLR*** on the well established principles of preliminary objections. He urges that the Appellant ought to have reported the alleged incident to the Director of Occupational Safety and Health Services in the first instance prior to instituting the suit before the trial Court, and cites ***Law Society of Kenya v Attorney General & another [2019] eKLR***. **Analysis and Determination** 1. From the grounds of appeal, the singular issue for determination is whether the trial court was divested of jurisdiction to hear and determine the suit. 2. Section 16 as read with Section 23 of the Work Injury Benefits Act confers the Director of Occupational Safety and Health Services with jurisdiction to adjudicate upon any claims of compensation arising from injuries or death in the workplace, and expressly bars institution of court proceedings. 3. Section 16 of the Work Injury Benefits Act provides that; ***“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.”*** 4. Section 23 of the Work Injury Benefits Act provides that: ***“(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.”*** 1. Section 26 of the Work Injury Benefits Act provides that, ***“A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within twelve months after the date of the accident or, in the case of death, within twelve months after the date of death. (2) If a claim for compensation is not lodged in accordance with subsection (1), the claim for compensation may not be considered under this Act, except where the accident concerned has been reported in accordance with***[***section 21***](https://new.kenyalaw.org/akn/ke/act/2007/13/eng%402022-12-31#part_IV__sec_21)***. (3) If an employer fails to report an accident or to provide information requested by the Director as specified in the request, the Director may—(a) conduct an investigation and recover the cost of the investigation from the employer as a debt due from the employer; or (b) levy a penalty on the employer. (4) An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim. (5) The Director shall, within thirty days of receipt of the money claimed under subsection (1), pay the money to the employee who made the claim or his dependants. (6) An employer or an insurer who fails to pay the compensation claimed under this subsection commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.”*** 2. There is no doubt that the Appellant’s claim originated from a work related injury. The Appellant pleaded at paragraphs 3 and 4 of the plaint as follows: ***“The plaintiff avers that the defendant contracted JAMES GITHINJI NDEI to undertake building works in Kerugoya. The plaintiff further avers that in the course of employment by the defendant in Kerugoya where he was injured on 5/12/2020 to the extent of being paralyzed solely due to the negligence of the defendant and the said victim suffered loss and damage.”*** 1. In ***Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR)***, the Supreme Court rendered thus; ***“Furthermore, this court should consider the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***2010’s provisions to help deduce whether or not the impugned provisions, when read alongside the purpose of***[***WIBA***](https://new.kenyalaw.org/akn/ke/act/2007/13)***would assist in bringing clarity and justice to the issues in contest. In doing so, a plain reading of section 16 of the***[***Act***](https://new.kenyalaw.org/akn/ke/act/2007/13)***would reveal that its intention is not to limit access to courts but to create a statutory mechanism where any claim by an employee under the***[***Act***](https://new.kenyalaw.org/akn/ke/act/2007/13)***is subjected, initially, to a process of dispute resolution starting with an investigation and award by the Director aforesaid and thereafter, under section 52 an appeal mechanism to the then Industrial Court. As we previously stated in Petition No 33 of 2018,***[***Sammy Ndungu Waity v IEBC and 3 others***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/54)***[2019] eKLR;*** ***“Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.”*** ***We reiterate the above holding and in the present context therefore we further find that Section 16 cannot be read in isolation so as to create the impression that it curtails the right to immediately access the courts, because by looking at the intention of section 16, the purpose it fulfils is apparent. That purpose is revealed in section 23 which calls for initial resolution of dispute via the Director and this can be deemed as an alternative dispute resolution mechanism. But what if one is still aggrieved by the decision of the Director? The answer to that question lies in section 52 of the***[***Act***](https://new.kenyalaw.org/akn/ke/act/2007/13)***which allows aggrieved parties to seek redress in a court process. In the circumstances, access to justice cannot be said to have been denied.*** ***63.Having so held, it is evident that by granting the Director authority to make inquiries that are necessary to decide upon any claim or liability in accordance with***[***WIBA***](https://new.kenyalaw.org/akn/ke/act/2007/13)***, the jurisdiction of the High Court to deal with constitutional questions and violations that may arise from such claims under article 165 of the***[***Constitution 2010***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***is not ousted at all. Similarly, the appellate mechanism to the Industrial Court, in the circumstances, cannot be legitimately questioned.*** ***64. The Director’s inquiries are also essentially preliminary investigations. Such mechanisms, set out by statute must be left to run their full course before a court intervenes. Not only does this simplify procedures to ensure that courts focus on substantive rather than procedural justice, but also potentially addresses the problem of backlog of cases, enhances access to justice, encourages expeditious disposal of disputes, and lowers the costs of accessing justice.*** ***65. There is also the added benefit that inquiries by the Director inevitably means that work injuries and accidents are well captured and understood by his office. He can for example take measures or instruct his officers to hasten remedial administrative measures to avoid further occurrence of similar incidents.*** ***66. In addition, the Director is in essence performing a quasi-judicial functions under section 23 and by dint of article 165 (6) "The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function." His actions and decisions, even without review or appeal, are therefore still subject to the over-riding authority of the High Court.*** ***67. With regard to section 52, we note that both the High Court and the Appellate Court determined that it was not the intention of the Legislature to limit appeals from a decision of the Director to the Industrial Court but was a case of unrefined drafting. We are in agreement with this finding and that such inelegance should be left to the Attorney General and for him to take appropriate action.*** ***68. The next issue to address is whether section 16 is an ouster clause. In***[***Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/9)***, SC Petitions 13A of 2013 as consolidated with Petition 14 of 2013 and Petition 15 of 2013 [2014] eKLR, this court observed:*** ***“[115]... Ouster clauses are provisions in the Constitution or a statute that take away, or purport to take away the jurisdiction of a competent court of law. They deny the litigant any judicial assistance in the relevant matter, and at the same time deny the courts the scope for making any arbitral contribution with respect to the relevant matter. In short, ouster clauses curtail the jurisdiction of the court, as the relevant matter is rendered non-justiciable before the courts...[117] Ouster clauses can be categorized as constitutional or statutory. Where they are statutory ouster clauses, the statute may confer exclusive jurisdiction on the relevant body to determine the relevant matter. In such a case, the relevant body must act under the statute, and not outside it.”*** ***69. We have stated that section 16 cannot be read in isolation because if read with section 23 and 52 of the***[***Act***](https://new.kenyalaw.org/akn/ke/act/2007/13)***, the Act provides for legal redress to the Industrial Court (now the Employment and Labour Relations Court) and therefore judicial assistance can be sought by aggrieved parties from decisions of the Director and the court can make a determination with respect to all relevant matters arising from those decisions. It cannot, therefore, be the case that section 16 amounts to an ouster clause. It is in fact merely facilitative of what may eventually end up in court.”*** 1. The Court agrees that this claim was instituted on 25/1/2023 long after the Supreme Court had rendered its decision in ***Law Society of Kenya v Attorney General & Another (Supra)****.* On 28/4/2023, the Supreme Court issued Practice Directions relating to pending court claims for compensation for work related injuries and diseases instituted prior to the Supreme Court decision *inter alia* that, ***“(a) Section 16 as read with Sections 23 and 52 of the WIBA does not limit access to courts but creates a statutory mechanism where any claim by an employer under the Act is subjected, initially, to a process of alternative dispute resolution mechanism starting with an investigation and award by the Director of Occupational Safety and Health Service and thereafter under Section 52 an appeal mechanism to the Employment and Labour Relations Court (formerly the Industrial Court).”*** 2. The Director of Occupational Safety and Health Services was the proper forum, in the first instance, to receive, investigate and determine the Appellant’s claim. In the event of delay and/or administrative inaction on the part of the Director, as alleged herein, the Appellant’s recourse lay not in instituting an ordinary civil suit but in commencing judicial review proceedings before the Employment and Labour Relations Court, seeking orders of mandamus to compel the Director to perform the statutory duty imposed by the law. By invoking the jurisdiction of the trial court without first exhausting the laid down alternative dispute resolution mechanism, the Appellant circumvented the express provisions of the Work Injury Benefits Act. 3. In the circumstances, this court finds that the institution of the suit before the trial court was in contravention of the express provisions of Sections 16, 23, 26 and 52 of the Work Injury Benefits Act, and consequently, the trial court lacked the requisite jurisdiction to hear and determine it. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit, and it is dismissed. 2. There shall be no order as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. T. Njoroge for the Appellant. Mr. Mburu for Mr. Gachie for the Respondent.