[2021] KEELRC 1634 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT MOMBASA

APPEAL NO. 21 OF 2019

(Being an appeal from the ruling and order of Hon. Dr. Julie Oseko, Chief Magistrate in

Civil Case No. 87 of 2015 at Malindi, David Fikiri Joshua –Versus- Lion in

The Sun Limited and Another, given on 14. 12. 2018)

THE HERITAGE INSURANCE COMPANY LIMITED.................................APPELLANT

- VERSUS -

DAVID FIKIRI JOSHUA...........................................................................1ST RESPONDENT

LION IN THE SUN LIMITED.................................................................2ND RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 4th June, 2021)

JUDGMENT

The 1st respondent filed a plaint against the 2nd respondent on 17. 03. 2015 through Kennedy Ngaira & Company Advocates. The 1st respondent alleged that at all material times he was in employment of the 2nd respondent when on 23. 01. 2014 while on duty, a heavy broken coral stone fell on his left hand and he thereby suffered injuries. He prayed for judgment against the 2nd respondent for general damages for pain and suffering; special damages of Kshs,2, 000. 00; and costs of the suit.

The 2nd respondent filed the statement of defence on 07. 09. 2015 through Binyenya Thuranira & Company Advocates. The 2nd respondent denied that at all material time it had employed the 1st respondent and if at all employment existed, the injuries alleged were caused by the 1st respondent’s negligence. The 2nd respondent further stated that in any event in respect of the nature of claims made for the 1st respondent, the 2nd respondent had taken out a workman’s compensation policy No. 100802132000021 with the appellant through Shalini Rajpal Insurance Agents and who are therefore liable to defend the claim and make any payment found due. The 2nd respondent pleaded that it will seek the appellant enjoined in the suit as a third party. The 2nd respondent prayed that the suit be dismissed with costs.

The application to enjoin the appellant was subsequently made by Chamber summons filed on 07. 06. 2016. The appellant filed a replying affidavit on 11. 07. 2016 and through Hamilton Harrison & Mathews Advocates. The appellant also filed its defence on 25. 10. 2016. The appellant stated that 2nd respondent had taken out the policy as pleaded and the policy expressly provided that the appellant was not liable for any liability not provided for in the Work Injury Benefits Act (WIBA) as stated in the policy (b-f); and, any liability arising out of any Court proceedings. Further, the appellant stated that the 2nd respondent had no basis to claim indemnity or contribution by the appellant under the common law claim filed by the plaintiff against the defendant – and the policy and the schedule to the policy did not obligate the appellant to indemnify the 2nd respondent from liability under common law for damages and litigation expenses in respect of bodily injury as alleged by the 2nd respondent. In alternative and without prejudice, the appellant stated that the County Occupational Health and Safety Officer assessed the 1st respondent’s injuries under the WIBA at Kshs.352, 608. 00 and the appellant disputed as set out in DOSH/WIBA form and the appellant’s claims procedure and after a second medical examination, the appellant offered to compensate the 1st claimant at Kshs. 161, 217. 00 under the policy but the 1st respondent rejected the offer. The appellant prayed that the 2nd respondent’s prayers made in the 3rd party notice against the appellant be dismissed with costs.

The appellant also filed on 05. 07. 2018 the notice of preliminary objection that the Court lacks jurisdiction to entertain the suit pursuant to sections 16 of the WIBA and the Court of Appeal’s judgment in Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR (Waki, Makhandia & Ouko, JJ. A), Consequently, the suit should be dismissed with costs to the 2nd respondent.

The learned Chief Magistrate considered the preliminary objection and delivered her ruling on 14. 12. 2018 and found to the following effect:

1) It was not in dispute that following the Court of Appeal judgment delivered on 17. 11. 2017 in Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, the trial Court was thereby divested of jurisdiction to hear and determine matters relating to work injury claims because the Court of Appeal had found that the section 16 barring filing of suits about injuries provided for under the WIBA was constitutional.

2) The present suit had been filed prior to delivery of the said judgment by the Court of Appeal on 17. 11. 2017 and after the delivery of the said judgment a directive by the Employment and Labour Relations practice direction of 11. 07. 2018 that all work injury claims be transferred to the Employment and Labour Relations Court which will refer the matter to the Director under WIBA.

3) In Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, the Court of Appeal held that where a new judicial forum is created or established to replace the existing system, matters commenced under the previous system shall be heard and finalised under such forum.

4) The trial Court had partly heard the suit before the said judgment by the Court of Appeal.

5) In view of the said decision by the Court of Appeal and the practice direction of 11. 07. 2018 and in order to do justice to the parties, the trial Court stayed the matter pending the Supreme Court judgment arising from Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR.

The learned magistrate then concluded her ruling thus, “For the above reasons stated, the Defendant’s Preliminary Objection dated 28th June, 2018 is hereby dismissed. It is so ordered.”

The appellant was dissatisfied with the decision and filed a memorandum of appeal on 29. 10. 2019 based on the following grounds:

a) The learned Magistrate erred in law and fact in dismissing the appellant’s preliminary objection dated 28. 06. 2018.

b) The learned Magistrate erred in law in failing to appreciate that the Court of Appeal’s decision in Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, affirmed the constitutionality of section 16 of WIBA which provision ousts the original jurisdiction of courts to hear and determine matters relating to work injury.

c) The learned Magistrate erred in law and fact in failing to appreciate that the Court of Appeal in Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, did not order that the matters commenced in court before its judgment shall be heard and finalised by the Magistrates courts.

d) The learned Magistrate erred in law and fact in ignoring the appellant’s preliminary objection and submissions and consequently she arrived at a wrong decision.

The appellant prayed for orders:

a) The appeal is allowed.

b) The ruling of 14. 12. 2018 be set aside and be substituted with an order striking out the 1st respondent’s suit with costs.

c) The costs of the suit be awarded to the appellant.

Submissions on the appeal were filed for the appellant and the 1st respondent. Despite service, the 2nd respondent did not file and serve submissions on the appeal.

It is submitted for the appellant as follows:

a) To her credit, the Honourable Magistrate directed that the matter be stayed pending the decision of the Supreme Court on an appeal from the Court of Appeal’s decision.

b) The Supreme Court delivered its judgment in Law Society of Kenya –Versus- Attorney General & Another [2019]eKLR (Maraga CJ & P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ) on 03. 12. 2019 in which it dismissed the appeal and upheld the decision by the Court of Appeal.

c) The appellant expected that after decision by the Supreme Court the trial Court would down its tools but that was not to be the case, instead the suit went through pre-trial conference and certified ready for hearing.

d) The Court of Appeal inNairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, 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 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.

e) It is a matter of judicial notice that chaos, uncertainty, and confusion over what is to happen to the suits on work injury claims that are pending in different courts across the country followed the pronouncement of the Court of Appeal in the cited case and still linger to this day even after the Supreme Court decision. The confusion is attributable to the legal phrase “legitimate expectation” as expressed by the Court of Appeal and the Supreme Court in the cited case.

f) Thus 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.”

g) On the other had the Supreme Court in its decision at paragraph 85 of its judgment in the said case held, “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.”

h) The interpretation of litigants entitled to the legitimate expectation is not uniform. One view is that all claims filed in courts prior to the decision by the Supreme Court (03. 12. 2019) should be heard and determined by the Courts. The other view is that only litigants who had filed their cases in courts prior to enactment and commencement of WIBA can claim the legitimate expectation. In the said judgment the Court of Appeal noted that WIBA became operational on02. 06. 2008 through Gazette Notice No. 60 of 23. 05. 2008. It is submitted for the appellant herein that 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. It is further submitted that the Court of Appeal had therefore referred to section 58(2) of WIBA thus, “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.” Further the Supreme Court considered the constitutionality of section 58(2) of the Act from paragraph 82 to 88 of its judgment. In view of the findings of the two superior Courts, the category of litigants who have legitimate expectation that their pending cases will be heard and determined by courts without following the procedure under WIBA are those who filed their cases before the commencement of WIBA on 02. 06. 2008 through Gazette Notice No. 60 of 2008. The Employment and Labour Relations Court has made such interpretation and findings like in the following cases.

i) In Manuchar Kenya Limited –Versus- Dennis Odhiambo Olwete [2020]eKLR Ndolo J held, “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.” In Longonot Horticulture Limited –Versus- James Wakaba Maina [2019]e KLRMbaru 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. On 09. 02. 2018 Rika J in Saidi Mohamed –Versus- Diamond Industries Ltd [2018] e KLRstruck 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, “21. 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 E& LRC 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.”

j) It is submitted that the foregoing and cited decisions by Ndolo J, Mbaru J and Rika J by themselves, recognise that judicial decisions (such as by the Court of Appeal and the Supreme Court herein on constitutionality of WIBA) that set precedent in law do have retrospective effect. Thus in A-Versus- The Governor of Arbour Hill Prison [2006] IESC 45 [2006] 4 IR 88 at paragraph 36, Murray C.J held, “Judicial decisions which set a precedent in law do have retrospective effect. A decision in principle applies retrospectively to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined.” Again in Kibos Distillers Limited & 4 Others –Versus- Benson Ambuti Adega & 3 Others [2020] eKLR the Court of Appeal (Asike-Makhandia, Kiage & Odek JJ. A) held “…. In civil cases, judicial decisions ordinarily are retroactive in application. Such retroactivity is a consequence of the nature and function of the judicial decision making process, Retroactivity is founded on the notion that a judicial decision enunciates the law as it has always existed….”

k) It was therefore submitted for the appellant that the appeal should be allowed as prayed for.

For the 1st respondent it was submitted as follows:

a) WIBA came into operation on 02. 06. 2008 through Gazette Notice No. 60 of 23. 05. 2008 and that fact is not in dispute.

b) On 04. 03. 2000 the High Court Ojwang J declared sections 4, 7(1), 10(4), 16, 25(1) (3), 52(1) (2), and 58(2) of WIBA to be inconsistent with the Constitution. The decision was appealed against but the appellant never applied for stay of execution or implementation of the declarations.

c) By Gazette Notice No. 9243 of 27. 07. 2011 Mutunga CJ designated Magistrates Courts to hear and determine certain matters relating to labour laws including work injury related matters, offences under the Labour Institutions Act, 2007, offences under the Employment Act, 2007, offences under Occupational Safety and Health Act, 2007, and offences under the Labour Relations Act, 2007. As at time the 1st respondent filed the civil suit no. 87 of 2015 at Malindi, he had a legitimate expectation that the Court had jurisdiction. The decision by Ojwang J and Gazette Notice No. 9243 of 27. 07. 2011 by Mutunga CJ granted the 1st respondent such legitimate expectation to file the suit. The decision by the Court of Appeal came long after the 1st respondent had filed the suit in the Magistrates’ Court.

d) In Kisumu West Kenya Sugar Co. Ltd –Versus- Titi Lucheli Tangale ELRC Appeal No. 4 of 2019, Radido J held that up to the time the Court of Appeal delivered its judgment on 17. 11. 2017 section 16 of WIBA was unconstitutional per decision by Ojwang J and it had not been disclosed whether the Supreme Court had granted any order staying the Court of Appeal decision until the Supreme Court delivered its decision on 03. 12. 2019 and thus holding at paragraph 46 thus, “In the Court’s respective view, bar any stay orders, all claims which were lodged with the Courts from 22nd May 2008 to 3rd December 2019 being claims underpinned by judge-made or judge declared law were validly within the jurisdiction of the Courts.”

e) Thus, the Magistrate’s Court has jurisdiction to hear and determine work injury claims for matters lodged in Court from 22,05. 2008 to 03. 12. 2019.

f) The 1st respondent submits that the Court considers the persuasive finding by Ogola J in Juma Nyamawi Ndunge & 5 Others –Versus- Attorney General, Mombasa Law Society (Interested Party) [2019]e KLRthat Magistrates’ Court Act and the Employment and Labour Relations Act have conferred upon magistrates the Jurisdiction to try and determine labour related matters. The Court should therefore find the preliminary objection by the appellant herein vexatious and an abuse of court process and dismiss it with costs.

The Court has considered the detailed submissions file for the appellant and the 1st respondent respectively. The Court makes findings as follows.

First, as submitted for the appellant, the decision of the Court of Appeal in inNairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, 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 Supreme Court in Law Society of Kenya –Versus- Attorney General & Another [2019]eKLR upheld and confirmed that position. As it appears to the Court and as urged and submitted for the appellant, the holding by the two Superior Courts was that only litigants who had filed their cases in courts prior to enactment and commencement of WIBA can claim the legitimate expectation. The two superior Courts noted that WIBA became operational on02. 06. 2008 through Gazette Notice No. 60 of 23. 05. 2008. The Court therefore finds that decision by the Court of Appeal as upheld by the Supreme Court protected cases filed in Courts before WIBA came into operation and on account of the doctrine of legitimate expectation that the suits pending prior to coming into operation of the WIBA on 02. 06. 2008 would be handled in accordance with the law and dispute resolution forum prevailing prior to WIBA. Thus, the Court considers that cases filed in courts prior to commencement of WIBA will continue and be determined by courts with the competent jurisdiction such cases may have been filed before the commencement date, 02,06. 2008. Further, the Court considers that for all work injury claims or disputes occurring before or after coming into operation of the WIBA on 02. 06. 2008 and for which no suit was pending in court as at the commencement date 02. 06. 2008, the same will be handled and determined in accordance with provisions of WIBA and in particular, that view being the better application of section 58(2) of WIBA which states thus, “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.” Hence, the Court of Appeal in its judgment had stated thus, “In its original form, section 58(2) though, in our view not inconsistent with the former or current Constitution requires further consideration to ensure smooth transition to the Act from Workmen’s Compensation Act. Similarly, in terms of section 23 of the interpretation and General Provisions Act, it is clear that where a written law partially or wholly repeals another written law, unless a contrary intention appears, the repeal cannot revive anything not in force or existing before the repeal or affect the previous operation of repealed law in relation to interests, rights and or obligations enshrined under such law.” As submitted for the appellant and quoting the Supreme Court decision, similarly the Supreme Court, on account of legitimate expectation, protected suits already filed on the commencement date of WIBA and for claims not filed as of the commencement date, they had to proceed under WIBA and which the Supreme Court found to be a more progressive law.

In view of those findings the Court returns that the learned Magistrate did not err when she found that following the Court of Appeal decision in Nairobi Civil Appeal No. 133 of 2011 – Attorney General –Versus- Law Society of Kenya & Another [2017] eKLR, the trial Court was thereby divested of jurisdiction to hear and determine matters related to work injury – as were before the trial Court in the suit subject of the present appeal and filed long after commencement of the more progressive WIBA and which was applicable accordingly. However, it has been established that the learned magistrate erred in dismissing the preliminary objection instead of upholding it in line with Court of Appeal findings and which operated retrospectively from the date WIBA had come into operation.

Second, the Court has considered the submissions made for the 1st respondent that there was no stay of implementation of the declarations of unconstitutionality of certain sections of WIBA and that as per the holding in Kisumu West Kenya Sugar Co. Ltd –Versus- Titi Lucheli Tangale ELRC Appeal No. 4 of 2019, that up to the time the Court of Appeal delivered its judgment on 17. 11. 2017 section 16 of WIBA was unconstitutional per the said decision by Ojwang J in the High Court. The Court has also considered the submission for the 1st respondent that as per holding inKisumu West Kenya Sugar Co. Ltd –Versus- Titi Lucheli Tangale ELRC Appeal No. 4 of 2019, in view of lack of disclosure whether the Supreme Court stayed orders by the Court of Appeal or not, section 16 of WIBA remained unconstitutional until 03. 12. 2019 when the Supreme Court affirmed the decision by the Court of Appeal. There is no material before the Court to suggest that the Supreme Court ever stayed the findings of the Court of Appeal and the Court returns that in such circumstances, the findings by the Court of Appeal took effect retrospectively from 17. 11. 2017 when the Court of Appeal delivered its judgment to 02. 06. 2008 when WIBA had commenced. It is true that the decision by Ojwang J in the High Court, as it appears, was never stayed. However, on the basis of the authorities cited for the appellant, the decision by the Court of Appeal as affirmed by the Supreme Court applied retrospectively to affirm and confirm that the challenged sections of WIBA were at all material time (since the commencement date of WIBA on 02. 06. 2008) constitutional – and, with exception of section 10(4) and section 7 with respect to the extent of prescribing Ministerial approval or exemption were unconstitutional as found by the Court of Appeal and affirmed by the Supreme Court.

The Court finds that the 1st respondent is therefore expected to process his claims in issue in accordance with provisions of WIBA and the material before the trial Court shows that the appellant in fact admits that the Director under WIBA had already assessed the compensation with the appellant raising certain objections or disputes. The 1st respondent’s work-place injury in issue is said to have occurred on 23. 01. 2014, long after WIBA commenced on 02. 06. 2008 and WIBA applies accordingly.

While making that finding the Court has considered that the High Court, Ojwang J, had on 04. 03. 2008 declared the impugned provisions of WIBA as unconstitutional and in reliance upon that declaration, some litigants had between that 04. 03. 2008 and 17. 11. 2017, when the Court of Appeal reversed that High Court decision, (in terms as already stated earlier in this judgment) filed suits in the Magistrates’ Court such as the suit in issue in this appeal which was filed on 17. 03. 2015. It may be arguable that by reason of retrospective application of decisions in civil suits affirming the position prior to the decision, the decision by Ojwang J applied as affirming the unconstitutionality of provisions of WIBA as had been impugned and until the date the Court of Appeal rendered its decision – and the legal regime prior to commencement of WIBA therefore applied to filing of suits in courts. However, the Court considers that by reason of the appeal, the affirmed retrospective status on provisions of WIBA was as per the decision by the Court of Appeal as affirmed by the Supreme Court. On that account, the Court relies on the law of the case doctrine so that the decision of the Court of Appeal as affirmed by the Supreme Court became binding on, the Court of Appeal as well as all other Courts in the Republic and applied throughout thereafter, not to be departed from, except by the Supreme Court and only in exceptional circumstances as may be appropriate. The related principles of stare decisis and precedent applied accordingly as flowing from the decision of the Court of Appeal as affirmed by the Supreme Court as opposed to as flowing from the earlier decision of the High Court which had been set aside by the Court of Appeal as affirmed by the Supreme Court – and the prevailing judge-made law then became the decision as affirmed by the Supreme Court. The Court considers that the decision by the High Court was effectively varied, and, can no longer be relied upon by the 1st respondent to justify the suit he filed against the 2nd respondent and which High Court decision is no longer binding or applicable on the issue at hand.

In making that finding the Court further considers that if a statute declared unconstitutional is a nullity from the date of its commencement and retrospectively so after the declaration of the unconstitutionality, the compelling converse principle must be that a statute challenged on account of alleged unconstitutionality but found and declared constitutional must be good law and binding retrospectively from the date of its commencement.

Third, the Court finds that in view of the Court’s foregoing findings, the appellant’s preliminary objection in the lower Court and subject of the present appeal is hereby upheld. The Court has considered the circumstances and history of the case and returns that in the interest of justice, each party shall bear own costs of the suit before the trial Court and the appeal before this Court.

In conclusion, the appeal is hereby allowed with orders:

a) The ruling and orders given on 14. 12. 2018 subject of this appeal are hereby set aside and the 1st respondent’s plaint is struck out.

b) Each party to bear own costs of the suit and the appeal.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT MOMBASA THIS FRIDAY 4TH JUNE, 2021.

BYRAM ONGAYA

JUDGE