[2016] KEHC 1282 (KLR)
The court held that the cause of action, though arising in the course of employment, was fundamentally a tort claim for personal injuries allegedly caused by the appellants' negligence in failing to restrain their dogs. The court found that such a claim does not fall within the exclusive jurisdiction of the...
Source-derived case information.
- Citation
- [2016] KEHC 1282 (KLR)
- Parties
- Appellant: Iqbal Manji; Appellant: Noreen Manji; Appellant: Jaribu Motors Limited; Respondent: Richard Kipkoech Ngeno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 205 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Jurisdictional Objection Prior to Hearing Appeal on Merits
- Outcome
- Objection to jurisdiction dismissed; High Court affirms jurisdiction to hear the appeal.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Jurisdiction of High Court, Employment Injury Claims, Negligence, Personal Injury Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iqbal Manji
Appellant
Noreen Manji
Appellant
Jaribu Motors Limited
Appellant
Richard Kipkoech Ngeno
Respondent
Procedural Posture
Civil Appeal / Ruling on Jurisdictional Objection Prior to Hearing Appeal on Merits
Legal Issues
- 1 Whether the High Court has jurisdiction to hear an appeal relating to an employment injury claim after the establishment of the Employment and Labour Relations Court.
- 2 Whether the cause of action falls under employment and labour relations or tort law as contemplated by Article 162(2) of the Constitution.
Ratio Decidendi
The court held that the cause of action, though arising in the course of employment, was fundamentally a tort claim for personal injuries allegedly caused by the appellants' negligence in failing to restrain their dogs. The court found that such a claim does not fall within the exclusive jurisdiction of the Employment and Labour Relations Court as contemplated by Article 162(2) of the Constitution. The suit was filed before the establishment of the Employment and Labour Relations Court, and the appeal was properly before the High Court. The court therefore ruled that it has jurisdiction to hear and determine the appeal on its merits.
Court Disposition
Objection to jurisdiction dismissed; High Court affirms jurisdiction to hear the appeal.
Orders
- The High Court has jurisdiction to hear and determine the appeal.
- Counsel to make submissions on the merits of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 205 OF 2012
IQBAL MANJI ……………………………………..……1ST APPELLANT
NOREEN MANJI ………………………………………2ND APPELLANT
JARIBU MOTORS LIMITED ……………………...…...3RD APPELLANT
VERSUS
RICHARD KIPKOECH NGENO …………………….....RESPONDENT
RULING
The lower court gave judgment in favour of the plaintiff, now respondent following a suit against the defendants, now appellants based on injuries sustained by the respondent while in the course of his employment. The respondent was the employee of the 3rd defendant when he was detailed by the 2nd appellant to collect and drive the 1st and 2nd defendants’ daughter to the airport.
He was attacked by a pack of dogs belonging to the 1st and or 2nd appellants and or the 3rd appellant at the residence of the 1st and 2nd appellants which was within the premises of the 3rd appellant. The judgment shows that he was awarded Kshs. 450,000/= general damages, Kshs. 2000/= special damages and costs.The appellants were aggrieved by that decision and lodged this appeal.
When the appeal came up for hearing before Mabeya J, on 8th July, 2015 Mr. Olouch for the respondent raised the issue of jurisdiction which needed to be addressed first. The learned Judge then made an order that the issue of jurisdictions be addressed. Both parties have filed submissions on the issue. Reference has made to Article 162 (2) and Article 165 (3) (a) of the Constitution relating to the jurisdiction of the court.
The suit in the lower court was filed in November, 2006 long before the establishment of The Employment and Labour Relations Court under Article 162 (2) of the Constitution. The judgment of the lower court was however delivered on 2nd April, 2012 and the Memorandum of Appeal filed on 24th April, 2012 after the promulgation of the new Constitution and Establishment of the Employment and Labour Relations Court.
The Employment and Labour Relations Court was established to deal with disputes relating to “employment and labour relations”. The respondent suffered injuries perhaps as a result of negligence on the part of the appellants for not restraining or caging the dogs within their residence. Although it may be argued that this was in the cause of employment, it cannot be said that it is a cause of action that can be related to employment and labour relations contemplated under Article 162 (2) of the Constitution aforesaid.
This was clearly a cause of action based on tort and paragraph 5 of the plaint reinforces the said position. To decide otherwise would be stretching the jurisdiction of The Employment and Labour Court beyond the mandate contemplated by the Constitution. In any case, this matter comes before this court at appellate stage and no persuasive argument has been advanced that the court may bend backwards to address matters instituted before the coming into effect of this court (Employment and Labour Relation Court) either in the lower court or at this stage.
I hold that his court has jurisdiction to deal with this matter and now invite counsel to make submissions on the merits or otherwise of the appeal. The costs shall be in the cause.
Dated and delivered at Nairobi this 27th day of July, 2016.
A.MBOGHOLI MSAGHA
JUDGE