https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1889

Musee v Brand Construction Ltd (Employment and Labour Relations Appeal E216 of 2025) [2026] KEELRC 1889 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1889 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E216 of 2025 NJ Abuodha, J July 2, 2026 Between James Musyoki Musee Appellant and Brand Construction Limited Respondent (Being an appeal arising from the Ruling and order of the Chief Magistrate’s Court at Milimani delivered by Hon. Kagoni E. M, (PM) on 10th May, 2021 in Milimani MCELRC No. 4277 of 2017) Judgment 1.Through the Memorandum of Appeal dated 10th July, 2025, the Appellant appeals against the whole ruling of the Hon. Kagoni E.M (PM) delivered on 10th May, 2021 on grounds among others that:a.That the learned trial magistrate erred in striking out the suit by failing to consider and address the issue of jurisdiction of the court.b.By finding that the court did not have jurisdiction to hear and determine the Appellant’s suit on WIBA matters. 2.The Appellant prayed that the ruling be set aside and the Respondent’s application dated 13th January, 2020 be dismissed with costs to the Appellant. 3.The Appeal was disposed of by written submissions. Appellant’s Submissions 4.The Appellant’s Advocates Kuloba Wasike & Company Advocates filed written submissions dated 14th November, 2025 and counsel submitted that the appeal should be considered in light of the chronology of decisions of the superior courts starting at the High Court in March 2009 and culminating at the Supreme Court on 3rd December, 2019. That is High Court in Law society of Kenya & Another v the Attorney General & Another (2009) eKLR, the Court of Appeal in Attorney General v the Law Society of Kenya & Another (2017) eKLR and the Supreme court in Law society v the Attorney General & Another; Petition No. 4 of 2019. According to Counsel, the WIBA issue was laid to rest on 3rd December, 2019 when the Supreme Court decided that the magistrates courts did not have jurisdiction to deal with WIBA matters. 5.On the issue of whether the trial court had jurisdiction to hear the Appellant’s case counsel submitted that the trial court had jurisdiction to hear the Appellant’s case filed at the Magistrates court. That the Appellant’s case was filed during the subsistance of the High Court decision that recognized magistrates court jurisdiction to hear and determine work injury claims. That the High Court in the above decision invalidated sections of the Work Injury Benefits Act allowing magistrates to continue having jurisdiction in relation to WIBA matters. That litigants were relieved that they could continue filing suits in Magistrates courts. 6.Counsel submitted that the suit was filed on 14/6/2017 at the magistrates’ court during the subsistence of the High Court decision hence at the right forum. Counsel relied on among others the case of Abbysina Iron & Steel Ltd v Douglas Momanyi Ondara (2016) eKLR on this assertion that the cases filed between 2009 to 2019 were validly before the courts based on Claimant’s legitimate expectation. That at the time the appeal was filed magistrates’ courts were hearing work injury matters that had already been filed in the courts following directions by the Chief Justice. 7.On the issue of whether the trial court erred by striking out the Appellant’s plaint counsel submitted that the trial court did err before hearing without sufficient basis in law as the suit was properly filed within jurisdiction of the court and the Plaint should not have been struck out. Counsel relied on the case of Ken-Knit Kenya Ltd v Obwari Obwoge (2022) eKLR which restated that matters filed during the High Court decision were properly before court and were to proceed to conclusion under the principle of legitimate expectation. Respondent’s Submisssions 8.The Respondent’s Advocates Muchui & Company Advocates filed submissions dated 17th February, 2026 and counsel relied on among other cases the case of Mbogo v Shah(1968) EA page 93 on when the appellate court will interfere with the discretion of trial court. 9.On the issue of whether the Notice of Motion dated 13th January, 2020 was opposed counsel relied on Order 51 Rule 14 of the Civil Procedure Rules on how a party would oppose an application either by a preliminary objection, replying Affidavit or statement of grounds of opposition. That there were grounds of opposition dated 10th July, 2020 in opposition to the Motion. That the grounds did not raise issues of law or a single statute. That grounds should be constrained to points of law and not facts as in this case. Counsel relied on among others the case of Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited (2010) eKLR on this assertion. It was submitted that the Appellant did not deny and challenge the view of the trial court in any way either in the appeal or its submissions when the trial court admitted contents of the supporting affidavit. 10.On the issue of whether the trial had jurisdiction to hear work injury related claims counsel submitted that the claim arises out of work Injury related accident and relied on section 16 of the WIBA Act that the recourse for such matters would be to report to Director who under section 23(1) makes inquiries as are necessary to decide upon any claim or liability in accordance with the Act. That the above sections give the Director powers to adjudicate WIBA matters and bars institution of court proceedings by the aggrieved employee. 11.Counsel submitted that whereas the High Court declared certain provisions of the WIBA Act including section 16 as unconstitutional in Nairobi Petition No. 185 of 2008 the Court of Appeal and Supreme Court reversed this position affirming the constitutionality of section 16 amongst other sections of WIBA which ousted the jurisdiction of the courts to hear and determine WIBA matters. That the superior courts limited application of legitimate expectation to suits filed prior to WIBA coming in to force. 12.Counsel relied on a number of cases where the courts dismissed/struck out suits such as this one while holding that the court’s role was not to make law but to interpret it. Among the cases relied on by counsel was Mombasa ELRC C.A No. 5 of 2019; Manuchar Kenya Limited v Dennis Odhiambo Olwete (2020) eKLR and Nakuru ELRC Appeal No 57 of 2017, Paul Ng’ang’a v Sinopec International Petroleum services Corporation Limited that held that the magistrates’ courts did not have jurisdiction to handle WIBA claims such as this one. On the issue of whether the trial court erred by striking out the claim counsel submitted that our courts are adversarial in nature and courts do not direct parties on filing of suits. Counsel relied on among other cases the case of Macfoy v United Africa Co. Ltd (1961) 3 ALL ER 1169 to submit that if an act is void it is in law a nullity and there is no need for an order of the court to set it aside. Counsel also relied on Halsbury’s laws of England 4th Edition, Vol10, Paragraph 314 on definition of jurisdiction. That jurisdiction flows from the Constitution and statute while relying on the case of the In the matter of Advisory Opinion of the court under Article 163 of the Constitution- Application No. 2 of 2011 that a court cannot arrogate to itself jurisdiction where legislation was clear. 13.Counsel submitted that the trial court had no power to transfer the dismissed suit or hear the claim. That after the court found that it had no jurisdiction it was justified in dismissing it. Counsel submitted that the Appellant quoted numerous decisions in its submissions but the Appellant conveniently left out in his submissions in West Kenya Sugar Co. Ltd v Tito Lucheli Tangale & Others (2021) eKLR where the court of Appeal sitting in Kisumu in civil Application No. E130 of 2021 stayed the execution of the said judgment pending the hearing and determination of the substantive appeal before the court being Civil Appeal E88 of 2021 hence the decision having been stayed remained unusable. 14.Counsel submitted that the suit having been filed in the court and before a forum which lacked jurisdiction the appeal lacked merit and should fail automatically. Counsel urged the court to be guided by the dicta in the case of Republic vs Business Premises Rent Tribunal &Another Ex- parte Albert Kigera Karume(2015) eKLR on lower court being guided by the decisions of the superior courts that this court should not deviate from the findings of two superior courts. That the Appeal should be dismissed with costs to the Respondent. That the Appellant had a recourse before the office of the DOSH. Determination. 15.The court has considered the grounds of appeal, the record of appeal and submissions filed by the both parties herein and observes as follows; it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that: -“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” 16.In this case, the Ruling of the trial court was that the Respondent’s application was merited and the trial court struck out the plaint without costs. The Appellant was aggrieved by the above ruling and order and fronted 9 grounds of Appeal which the court will frame to a single issue of whether the trial court had jurisdiction to hear and determine the Appellant’s suit and whether the trial court erred in striking out the Appellant’s plaint. 17.This court notes that the date of commencement of the WIBA was June 2, 2008 as per Legal Notice No .60 of May 23, 2008. The judgment of the High Court by Ojwang J. was delivered on March 4, 2009 and that of the Court of Appeal was delivered on November 17, 2017. The judgment of the Supreme Court was delivered on December 3, 2019. 18.The case in the lower court by the Respondent in this appeal was filed in May, 2017. This therefore meant that the case by the Appellant was filed after the WIBA had commenced operation and the High Court had declared various sections of the Act unconstitutional. In addition, the Supreme Court had not dealt with the respective appeals filed therein as at the date of filing of the case before the trail court. 19.This court notes that the Supreme Court did not give directions on cases that were filed between the decision of the High Court and when it made its decision. The two superior courts directed on matters that had been filed prior to coming into operation of WIBA on June 2, 2008 and directed that such matters should proceed on merits to logical conclusion based on the doctrine of legitimate expectation. This was the same observation in the case of Omutiti v Orpower 4 Inc (Employment and Labour Relations Appeal 12 of 2021) [2023] KEELRC 1974 (KLR) (31 July 2023) (Judgment)that: -The following dates are very important to this appeal and any other matter relating to the issues herein. The date of commencement of the WIBA is June 2, 2008 as per Legal Notice (LN) No 60 of May 23, 2008. The judgment of the High Court was delivered on March 4, 2009 and that of the Court of Appeal was delivered on November 17, 2017. The judgment of the Supreme Court was delivered on December 3, 2019. 22.The case in the lower court by the Appellant in this appeal was filed on September 27, 2017. There are two very important aspects of this date. The first one is that the case by the Appellant was filed after the WIBA had commenced operation. Secondly, the High Court had declared various sections of the Act unconstitutional, as alluded to above, before the case was filed. The third angle is that the Court of Appeal and the Supreme Court had not dealt with the respective appeals filed therein as alluded to above as at the date of filing of the case. 23.What has probably caused the confusion that has been witnessed in matters raising the same or similar issues as raised in this appeal is that the Court of Appeal and the Supreme Court did not comment on or give directions on cases that were filed between the decision of the High Court and the decision of the Court of Appeal. The two superior courts directed on matters that had been filed prior to coming into operation of WIBA on June 2, 2008 and directed that such matters should proceed on merits to logical conclusion based on the doctrine of legitimate expectation. 20.Due to this confusion the Chief Justice gave practice directions on the WIBA matters vide the Kenya Gazette No. 5477 of 28th April,2023 and provided as follows: -Claims Filed after Commencement of WIBA but before the Supreme Court decision 7.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,i.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. 21.This therefore meant that by the time the Appellant filed his case at lower court in May, 2017 the WIBA had commenced and it was before the Supreme Court decision of 2019 that is between 2009-2019 hence within the bracket the Chief Justice addressed. 22.The Appellant’s assertion that courts cannot arrogate themselves jurisdiction is therefore defeated by the Chief Justice directions and further even the Supreme Court acknowledged that doctrine of legitimate expectation was such that such cases could only proceed in court. As already herein stated, the same year the suit was filed, the only decision in force was the High Court’s decision which had declared section 16 of WIBA unconstitutional hence giving the Magistrates’ court’s jurisdiction. The Appellant therefore expected that his case would be heard and determined by that court. The practice directions were made for public interest and to solve the confusion experienced by courts and litigants and could not be said to confer jurisdiction to courts in place of statutes. 23.The Supreme Court in Law Society of Kenya v Attorney General & another [2019] eKLR quoted with concurrence the dictum of the Court of Appeal in this matter thus:“With respect, we agree that claimants in those pending case have legitimate expectations that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked”. 24.The Supreme Court went on to state thus: -“In agreeing with the Court of Appeal, we note that it is not in dispute that prior to the enactment of the Act, litigation relating to work-injuries had gone on and a number of the 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 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 finalized under Section 52 aforesaid” 25.This court therefore is not only bound but agrees with holding by the Court of Appeal and the Supreme Court on this matter and consequently sets aside the ruling by the lower court that it did not have jurisdiction to entertain the suit and the consequent order striking out the suit before it. This Court instead finds and holds that the trial court had jurisdiction to hear and determine the suit as per the directions given by the Chief Justice on such matters. 26.In the upshot the Appeal is hereby found merited and is hereby allowed with costs to the Appellant. The court consequently orders that the matter proceeds to full hearing and conclusion before the Magistrates’ Court but before a different magistrate. 27.It is so ordered. DATED AT NAIROBI THIS 2ND DAY OF JULY, 2026DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION