https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2134

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E049 OF 202****5** *(Before Hon. Lady Justice Maureen Onyango)* **KEN-KNIT KENYA LIMITED…………….….…………. APPELLANT** **VERSUS** **MOSES IDUKTA ORIDI…….………..…………………RESPONDENT** *(Being an appeal from the Judgment /Decree of Hon. E. Kigen, Senior Resident Magistrate delivered on* *11th November 2022 in Eldoret* *CMCC No. 1285 of 2016)* **JUDGMENT** 1. This is an appeal arising from the Judgment and Decree of Hon. E. Kigen (Senior Resident Magistrate) delivered on *11th November 2022 in Eldoret CMCC No. 1285 of 2016)*, wherein the learned magistrate found the Appellant liable for the injuries sustained by the Plaintiff (now the Respondent) and proceeded to assess damages as follows: - General damages 70,000 Special damages 6,000 Less 50% contributory negligence 38,000 Total…………………………………….……………...38,000 1. Being dissatisfied with the judgment of the trial court, the Appellant lodged the Memorandum of Appeal dated 22nd November 2022 on the following grounds: - 2. THAT the learned trial magistrate erred and misdirected herself in fact and in law by failing to appreciate that the Court of Appeal decision in ***Nairobi Civil Appeal No. 133 of 2011- Attorney General v 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. 3. THAT the learned trial 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 v Law Society of Kenya & Another 2017 eKLR***, did not order that the matters commenced in court before its judgement shall be heard and finalised by the Magistrate's court. 4. THAT the learned trial magistrate erred in law and fact in dismissing the Appellant's Application dated 26th October 2020 challenging the Jurisdiction of the said Court to hear and determine WIBA matters. 5. The Appellant seeks the following orders that: - 6. The Appeal be and is hereby allowed 7. The Judgment/Decree of the Honourable Court dated 11th November, 2022 be reviewed and/or set aside. 8. That the Judgement/Decree of 11th November 2022 be set aside and substituted with an order striking out the Respondent's suit with costs 9. That costs be awarded to the Appellants herein. **Background of the case** 1. By a Plaint dated 21st November 2016, the Respondent instituted proceedings against the Appellant alleging that on 19th February 2016, while carrying out his duties in the knitting department under the direction and control of the Appellant, he sustained injuries to his left thumb. 2. The Respondent attributed the occurrence of the accident to negligence, breach of statutory duty and breach of contract on the part of the Appellant and prayed for compensation for the injuries sustained. 3. In its Statement of Defence dated 13th December 2016, the Appellant denied the allegations contained in the Plaint and contended that the accident was wholly occasioned by the negligence of the Respondent. 4. Consequently, the Appellant denied liability and urged the court to dismiss the Respondent’s suit with costs. 5. Upon considering the evidence adduced and the submissions by the parties, the learned Trial Magistrate awarded the Respondent Kshs. 70,000 in general damages and Kshs. 6,000 in special damages, less 50% contribution, leaving a net award of Kshs. 38,000. **The Appeal** 1. On 10th December 2025, the court directed the parties to dispose of the Appeal by way of written submissions. The Respondent’s submissions are dated 9th February 2026. I have perused the record and did not find submissions for the Appellant. **Respondent’s Submissions** 1. The Respondent submitted that the Appellant had previously challenged the jurisdiction of the trial court through an application which was determined by a ruling delivered on 26th February 2021. It is submitted that the Appellant did not appeal against that ruling but instead proceeded with the hearing of the suit, participated fully in the proceedings and called witnesses. 2. The Respondent further submitted that judgment was subsequently delivered on 11th November 2022. That the Appellant now sought to challenge the earlier ruling long after the conclusion of the trial process. 3. The Respondent further argued that if the Appellant intended to challenge the ruling of 26th February 2021, it ought to have sought leave to appeal out of time, which it failed to do. 4. The Respondent therefore urged the court to dismiss the appeal with costs and order payment of the decretal sum together with interest from the date of judgment. **Analysis and Determination** 1. The duty of the first appellate court was explained in the case of **Abok James Odera T/A A.J. Odera & Associates v** **John Patrick Machira T/A Machira & Co. Advocates** **(2013) eKLR** as: - *“On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”* 1. I have carefully considered the Record of Appeal, the grounds of appeal, the rival submissions by the parties and the applicable law. In my view, the issue arising for determination is whether the trial court had jurisdiction to hear and determine the Respondent's claim. 2. The Appellant’s grievance is that the trial court lacked jurisdiction to entertain the Respondent’s claim by virtue of Section 16 of the Work Injury Benefits Act (WIBA), as affirmed by the Court of Appeal in ***Attorney General v Law Society of Kenya & Another* [2017] eKLR.** 3. The Respondent on the other hand maintains that the Appellant had challenged jurisdiction before the trial court through an application dated 26th October 2020 which was dismissed by a ruling delivered on 26th February 2021. The Respondent contends that having proceeded with the hearing of the suit and participated in the proceedings without challenging the ruling, the Appellant cannot now seek to reopen the issue after judgment has already been delivered. 4. Jurisdiction is a fundamental issue that goes to the root of the court's authority to hear and determine a matter. As held in the case of ***Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd*** a court acting without jurisdiction acts in vain and any proceedings conducted without jurisdiction are rendered a nullity. 5. The question that therefore arises is whether, at the time the Respondent instituted the suit in 2016, the Magistrates’ Court had jurisdiction to entertain claims arising under WIBA. 6. The Respondent filed the suit on 21st November 2016. At the time, Section 16 of WIBA had been declared unconstitutional by the judgement of the High Court. subsequently, in ***Attorney General v Law Society of Kenya & Another [2017] eKLR,*** the Court of Appeal upheld the constitutionality of Section 16 of WIBA and affirmed that work injury claims fell within the statutory framework established under the Act. However, the Court of Appeal did not state the fate of cases which had been filed in the Magistrates Courts following the decision of the High Court and before the decision of the Court of Appeal as subsequently confirmed by the Supreme Court. 7. Consequently, the Supreme Court in ***Law Society of Kenya v Attorney General & Another [2019] eKLR*** clarified the effect of the Court of Appeal decision and directed that matters which had already been filed and were pending before the courts after the decision of the High Court but before the decision of the Court of Appeal would proceed to conclusion before those courts in which the suits had been filed. 8. Consequently, while Section 16 of WIBA was ultimately upheld as constitutional, the Supreme Court preserved proceedings that had already been instituted before the courts prior to the clarification of the legal position. 9. In the instant case, the Respondent's suit was instituted in 2016 and was therefore already pending before the subordinate court long before the final pronouncement by the Supreme Court on the issue. It therefore follows that the suit properly fell within the category of matters preserved for continuation and determination before the courts in which they had already been filed. 10. Further, the record shows that the issue of jurisdiction had been raised before the trial court through the Appellant's application dated 26th October 2020 and subsequent ruling rendered on 26th February 2021 which ruling, the Appellant did not challenge and in fact proceeded with the hearing of the matter to its conclusion. 11. The position in law is that the issue of jurisdiction can be raised at any point of proceedings. This was restated in **Governor, County Government of Kakamega & 4 others v Omweno & 12 others (Civil Appeal E176, E177 & E179 of 2024 (Consolidated)) [2025] KECA 190 (KLR) (7 February 2025) (Judgment)** where the Court of Appeal stated: *“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.”* 12. A party who objected to the jurisdiction of a court in the trial court can thus still raise the issue at subsequent stages in the same suit or on appeal. There was therefore nothing wrong with the Appellant raising the same issue of jurisdiction in the instant appeal after judgment in the main suit, even though it did not appeal against the ruling. 13. Going back to the merits of the appeal, I find no basis for interfering with the trial court's assumption and exercise of jurisdiction over the Respondent’s claim. 14. Jurisdiction having been the only issue in the appeal, I find the appeal devoid of merit and dismiss it with costs to the Respondent. 15. Orders accordingly. **DATED, SIGNED AND DELIVERED** **ON THIS 21ST DAY OF MAY 2026** **MAUREEN ONYANGO** **JUDGE**