[2023] KEHC 26067 (KLR)

Owaa v Western Steel Mills Co Ltd & another (Civil Appeal E121 of 2021) [2023] KEHC 26067 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26067 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E121 of 2021

JRA Wananda, J

December 1, 2023

Between

Elisha Otieno Owaa

Appellant

and

Western Steel Mills Co Ltd

1st Respondent

Heritage Workforce Ltd

2nd Respondent

(Appeal arises out of the Ruling delivered on 16/09/2021 in Eldoret Chief Magistrate’s Court Civil Suit No. 387 of 2018)

Judgment

1. This Appeal arises out of the Ruling delivered on 16/09/2021 in Eldoret Chief Magistrate’s Court Civil Suit No. 387 of 2018 as a result of a Preliminary Objection challenging that Court’s jurisdiction. The Appellant was the Plaintiff in the suit while the Respondents were the Defendants.

2. The background of the matter is that by the Plaint filed in the said suit on 11/04/2018 through Messrs Omondi & Co. Advocates, the Appellant pleaded that he was an employee of the 2nd Respondent working within the 1st Respondent’s premises, that on 21/02/2018 while in the course of employment, the Appellant sustained injuries, and that the incident was caused by the negligence of the Respondents. He therefore sought compensation.

3. The 2nd Respondent filed its defence denying the allegations. It also filed the Notice of Preliminary Objection dated 1/09/2020 contending that the Court lacked jurisdiction because the suit was against the provisions of Sections 16 and 58 of the Work Injury Benefits Act 2007. By its Ruling delivered on 16/09/2021, the Court upheld the Preliminary Objection and struck out the Appellant’s suit.

4. Aggrieved with the Ruling, the Appellant instituted this Appeal vide the Memorandum of Appeal dated 30/09/2021 premised on the following grounds;i.The Learned trial Magistrate erred in law and in fact in finding and holding that the Magistrate’s Court lacks jurisdiction to hear and determine the Appellant’s caseii.The Learned trial Magistrate erred in law and in fact in arriving at a decision that flew in the face of the law and evidence presented before him.iii.The Learned trial Magistrate erred in law and in fact in failing to find and hold that the Appellant has a legitimate expectation to have his case heard and determined before the Magistrate’s Court.iv.The Learned trial Magistrate erred in law and in fact in failing to appreciate in totality the submissions made before him by the Appellant.v.The Learned trial Magistrate erred in law and in fact in sustaining the Respondent’s Preliminary Objection, notwithstanding the evidence presented before him, particularly the admission of jurisdiction by the Respondent.

5. Pursuant to directions given, the Appeal was canvassed by way of written Submissions. The Appellant filed his Submissions on 28/03/2023 through Messrs Omondi & Co. Advocates while the 2nd Respondent filed its Submissions on 6/04/2023 through Messrs Nyairo & Co. Advocates.

Appellant’s Submissions 6. Counsel for the Appellant submitted that the 2nd Respondent had in its Statement of Defence admitted the jurisdiction of the Court, that however in a dramatic change of position the 2nd Respondent filed the Notice of Preliminary Objection stating the Court did not have jurisdiction in view of Sections 16 and 58 of the Work Injury Benefits Act 2007, the Objection was precipitated by the Judgment of the Supreme Court in Petition No 4 of 2019: Law Society of Kenya Vs The Attorney General And Another [2019] eKLR rendered on 3rd December 3/12/2019, the decision of the Supreme Court was against a decision of the Court of Appeal, the decision of the Court of Appeal was itself against a decision in the High Court case of Law Society of Kenya and Another -vs- The Attorney General [2009] eKLR, in the suit before the High Court, the Learned Judge had stayed the operation of, among others, Section 16 of the Act, and that ultimately in its judgment the High Court declared Section 16 unconstitutional.

7. Counsel submitted further that the suit was filed in April 2018, by that time, the Supreme Court decision that the 2nd Respondent relied on had not been delivered, the prevailing interpretation of the law then was that Section 16 was unconstitutional, that meant that the jurisdiction to hear and determine industrial accident cases lay with the Courts, in filing his case in Court, the Appellant was acting in deference to the law as was then understood following a judicial interpretation, the trial Court had jurisdiction to hear and determine the case between the date the High Court stayed Section 16 and the date the Supreme Court rendered its Judgment, April 2018 falls between these dates, secondly, the Supreme Court itself was alive to this reality, in its Judgment (paragraphs 85 and 88) the Court emphasized the concept of legitimate expectations and stated that its decision did not take away any litigants’ legitimate expectations to have their cases heard and determined under the legal regime obtaining when such cases were filed, the Appellant, under the belief that the Magistrate Court had jurisdiction to hear and determine his case cannot and should not be pushed out of the legal process because interpretation of the law changed after he had filed his case, and that the Court was bound to hear the case to sustain confidence, predictability, certainty and regularity in its processes. He cited the case of Legal Resources Foundation Trust vs The Attorney General and 2 Others.

8. Counsel contended further that based on the doctrine of legitimate expectations and in view of paragraphs 85 and 88 of the Supreme Court decision, Courts have held that cases filed on the strength of the Section 16 of the Act were properly filed and that Kisumu ELRC No. 4 of 2019 – West Kenya Sugar Co. Ltd vs Tito Lucheli Tangale and Nakuru ELRC No. 262 of 2017 – Timothy Kinyua Nyaga vs Langfield Systems Ltd and Another.

2nd Respondent’s Submissions 9. Counsel for the 2nd Respondent submitted that at the time that the suit was filed, the legal regime governing work injury related claims was the Work Injury Benefits Act, 2007 (WIBA) which was enacted in the year 2007 to replace the Workmen's Compensation Act, Cap 236. She quoted Section 16 of WIBAand added that under the said Act, the forum for lodging work injury claims is before the Director of Occupational Safety and Health Services as provided under Section 22 and 23 thereof, it is on that basis that the 2nd Respondent moved the Court seeking that the suit be struck for want of jurisdiction, and that the Court upheld the objection and the suit was struck out.

10. Counsel denied that the objection was precipitated by the Supreme Court decision in Petition 4 of 2019: Law Society of Kenya versus The Attorney General and Another [2019] eKLR as the same had not been raised previously, the objection was grounded on the provisions of the WIBA, it is trite law that a preliminary objection can be raised at any time either by the parties or even suo moto by the Court and even on appeal as jurisdiction is everything and a decision rendered by a Court or tribunal that is not clothed with jurisdiction is null and void and has no legal effect. She cited the case of Kenya Ports Authority versus Modern Holding [EA] Limited.

11. She then submitted that the Appellant’s claim arose out of the alleged injuries he sustained in the course of employment, at the time of filing suit, the substantive law governing work injury related claims was and still is WIBA, the Act has never been repealed and remains in force to date. She cited Section 16 of the Act and submitted that under Section 52 the jurisdiction of the Court to handle work injury claims is limited to only appeals from the decision of the Director of Occupational Safety and Health Service (hereinafter referred to as “the Director”) and which appeals ought to be filed before the Employment and Labour Relations Court, the person mandated under Section 23(1) of the Act to handle work injury claims at the first instance is the Director, this position was re-emphasised by the Supreme Court decision in the said Petition No. 4 of 2019 which settled the dust as to the correct forum with regard to work injury claims by upholding the Court of Appeal decision that found Sections 4, 16, 21(1), 23(1), 25 (land 3), 52(1) and (2) and 58 (2) of the Act to be constitutional.

12. Counsel submitted further that the Court of Appeal decision in Attorney General Versus Law Society' of Kenya and Another [2017] eKLR was rendered on 17/11/2017 and was never stayed even during the pendency of the appeal before the Supreme Court, as such, at the time the suit was being filed the legal regime that was in force whether established by statute or by judge made law was clear that the Court did not have jurisdiction to entertain the claim at the first instance.

13. Counsel further contended that following the Supreme Court's decision the issue of whether or not the Court has jurisdiction to handle work injury matters pending before it on the basis of legitimate expectation was adequately addressed in the cases of Shree Ganesh Enterprises Ltd & Another v Mung’aya (Employment and Labour Relations Appeal E018, E015, E016, E017, E019 & E020 of 2021 (Consolidated) (2022) KE ELRC 13254 (KLR) (17 November 2022). She also cited the case of Jumbo North (E.A) Limited v Wilder Wangira [2020] eKLR and also Saidi Mohamed versus Diamond Industries Ltd [2018] eKLR and submitted that the Act, which in order of hierarchy is supreme, is clear that the Court is not the first port of call in addressing work injury claims and the Supreme Court whose decision is binding to all Courts by virtue of Article 163(7) of the Constitution of Kenya, 2010 has even made it clearer by upholding the Court of Appeal decision on the subject, and that it thus follows that whichever way the Court is to look at the matter, the subordinate Court simply did not have jurisdiction to entertain the claim and the Court's decision was correct.

Gazzette Notice No. 5476 of 2023 14. Subsequently, in the intervening period, the Chief Justice issued Practice Directions vide the said Gazette Notice published in the Kenya Gazette of 28/04/2023 providing guidelines on the fate of industrial accident cases instituted prior to the Supreme Court decision in the said case of Law Society of Kenya vs Attorney General (supra)

15. The parties agreed that the said Practice Directions could have an effect on the matters in this Appeal. In the circumstances, I directed the parties to file Supplementary Submissions limited to that issue. Pursuant thereto, the Appellant filed his Supplementary Submissions on 17/05/2023 while the 2nd Respondent filed its Submissions on 30/05/2023.

Appellant’s Supplementary Submissions 16. In his Supplementary Submissions, Counsel for the Appellant submitted that the “Practice Directions” issued by the Chief Justice seek to consolidate and standardize the practice and procedure in relation to the claims referred to therein, to facilitate timely and efficient disposal of cases filed prior to the Supreme Court decision and ensure uniformity in Court experience. He submitted that the directions divided pending work-related claims into 3, namely, claims filed before the enactment of WIBA under the Workmen’s Compensation Act, Cap 236 (repealed), claims filed after the commencement of WIBA but before the Supreme Court decision and claims filed after the Supreme Court decision.

17. He submitted further that the suit giving rise to this appeal was filed on 11/04/2018, it evidently falls under the second category above, by paragraph 7 of the aforesaid Directions, this claim should proceed until conclusion before the trial Court, the only catch is that by the time the Rules were promulgated the suit had already been struck out for want of jurisdiction, In the Directions, it is clearly discernible that the purpose thereof was to unlock the hearing and determination of cases pending in Court and which the Supreme Court decision had frozen, secondly, the directions sought to save the said suits across the board as opposed to having every Court interpret the Supreme Court decision, on the basis of these noble objectives, Courts should interpret the directions in a manner that saves every suit, every suit that is pending in Court whether at the trial or appellate stage should be heard and determined on merit, and that in D.T. Dobie and Company (K) Limited vs Joseph Mbaria Muchina and Another [1980] KLR, the Court held that a Court of justice should aim at sustaining a suit rather than terminating it.

18. Counsel contended further that the Directions further appreciated the import of the Supreme Court decision including retrospective operation of statute not being illegal, legitimate expectations of litigants and the feasibility of terminating pending cases and instituting them before the alternative dispute resolution forum, all these fundamentals are meant to ensure that cases filed after the passage of WIBA but before the Supreme Court decision are disposed of on merit as the affected litigants cannot be penalized for relying on a declaration of nullity by the High Court on 4/03/2009, by seeking that the lower court case be reinstated and allowed to proceed, the Appellant is not seeking to apply the Directions retrospectively, he is seeking to ensure uniformity in Court experience, all pending cases in whichever Court affected by the Gazette Notice should be handled uniformly across the board, the situation would be different if upon striking out of the suit the Appellant went to sleep and pursued the matter no further, in the situation herein, he appealed and the appeal is active, and that the appeal constitutes a pending suit before Court as envisaged under the Directions.

19. He submitted further that by Article 27(1) of the Constitution of Kenya, it is provided that every person is equal before the law and has the right to equal protection and benefit of the law, looking at the Directions purposively, the Chief Justice set out to consolidate and standardize Practice and Procedure affecting work injury related claims, the rules also seek to ensure uniformity in Court experience, put differently, the rules affect all cases pending in Courts so long as they relate to work injury claims, it would be discriminatory and an affront to Article 27(1) aforesaid if appeals are handled differently from unheard suits, persons whose suits were dismissed/struck out and appealed are entitled to equal benefit of the law and in this case the law is the Directions by the Chief Justice, this Court should reverse the decision by the trial Court and remit the suit back for hearing on merit.

20. In conclusion, Counsel contended that the Rules refer to the Magistrate’s Court and the Employment and Labour Relations Courts, this Appeal was filed in this Court because the Court below rendered its decision sitting as a civil Court, the suit was a civil suit and therefore an appeal lay before this Court, the Practice Directions still apply, and that alternatively, the Court can transfer the suit to the Employment and Labour Relations Court.

2nd Respondent’s Further Submissions 21. In her Further Submissions, Counsel for the Appellant submitted that regarding Direction 7 of the Practice and Direction Rules that matters filed after the commencement of WIBA but before the Supreme Court decision in the case of Law Society of Kenya v Attorney General (supra) should proceed before the Courts until conclusion, the same does not apply to the instant Appeal because the suit before the trial Court was dismissed for want of jurisdiction as per the statute in place, at the time of filing the suit, the Court had declared constitutional the Sections that had been declared as unconstitutional by the High Court and therefore the law which was operational at the time of the institution of the suit was WIBA, even assuming one was to say the directions apply which is not the case, the position does not change because the Practice Directions did not change the set of facts obtaining in the current matter, considering the Court of Appeal decision, the Magistrate Court was right in dismissing the matter and cannot be faulted, the Directions came into force on 28/04/2023 while the suit was dismissed on 16/09/2021. She submitted further that the Directions cannot be applied retrospectively and cited the case of Said Hemed Said v Emmanuel Karisa Maitha & Another HCEP No. 1 of 1998 which, she submitted, cited the case of John Mwangi v Francis Mwangi Njuguna, Civil Application No. 96 of 1997 and also Hutchunson Maurices [1950] 1 KB 574.

22. In conclusion, she submitted that WIBA stands to date and any move to alter its operations must be done in line with the law and in the correct forum.

Analysis & Determination 23. I took over this Appeal in February 2023 after it had already been in this Court since 30/09/2021 when it was filed. I have agonised whether I should agree to handle and determine this Appeal considering that the same is about WIBA and therefore a matter that may be deemed to be for the Environment & Land Court in light of the provisions of Article 162(2) of the Constitution and also Section 13(2) of the Environment & Land Court Act. However, since neither of the parties seriously addressed this issue in his Submissions, and also considering the long time that has lapsed since this matter was first filed in the Magistrates’’ Court, 6 years ago, in the year 2018, I agree to entertain it.

24. The closest that the 2nd Respondent addressed this issue was when in its Submissions, it stated, in passing, that “this Appeal was filed in this Court because the Court below rendered its decision sitting as a civil Court. The suit was a civil suit and therefore an Appeal lay before this Court. It is our view that the Practice Directions still apply. Alternatively, the Court can transfer the suit to the Employment and Labour Relations Court”.

25. In light of the foregoing, having considered the record in general, including the Submissions and authorities presented, I find the issue that arises for determination to be as follows:“Whether the trial Magistrate erred in ruling that the Court lacked jurisdiction to determine the suit in light of the provisions of Section 16 and 58 of the Work Injury Benefits Act 2007. ”

26. Section 16 aforesaid provides as follows;“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.”

27. Section 58(2) then states as follows;“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.”

28. Although Counsel for the Respondents denied that the Preliminary Objection was pegged on the findings of the decision of the Supreme Court in Law Society of Kenya vs Attorney General (supra) which was delivered on 3/12/2019, I note that even in her own Submissions before the trial Court, she extensively cited and attached that same decision. Further, the suit was instituted on 10/04/2018, the 2nd Respondent then filed its Statement of defence in which it expressly admitted jurisdiction of the Court. The Preliminary Objection changing the 2nd Respondent’s position and now challenging jurisdiction, was then filed on 2/09/2020, more than 2 years after the suit had been filed and jurisdiction duly admitted, and also subsequent to the Supreme Court decision. I am therefore convinced that inasmuch as the Preliminary Objection was anchored on the provisions of WIBA as correctly argued by Counsel for the 2nd Respondent, clearly it was motivated by the Supreme Court decision.

29. In any event, it is that same Supreme Court decision that will shape the direction that this Court will take in determining this Appeal. To answer the issues before Court therefore, it is necessary that the Supreme Court decision and its effect be examined.

30. WIBA came into effect on 2/06/2008. Under that Act, the primary or original jurisdiction to handle matters concerning compensation to employees for industrial or workplace injuries was divested from the Courts and bestowed upon the Director of Occupational Safety and Health Services (hereinafter referred to as “the Director”). The Courts were only left with appellate jurisdiction. The constitutionality of these provisions was then challenged at the High Court which then on 4/03/2009 (Ojwang J, as he then was) ruled that the provisions were unconstitutional and struck them out. This decision was however reversed by the Court of Appeal 8 years later, on 17/11/2017 which then reinstated the provisions that had been struck out by the High Court. This position left in limbo the fate of industrial accident suits that were filed after the High Court decision delivered on 4/03/2009 and before the Court of Appeal decision delivered on 17/11/2017. What then was the position regarding such cases?

31. To answer the above question, since as aforesaid the Supreme Court subsequently on 3/12/2019 upheld the decision of the Court of Appeal, it is important to recite what the Supreme Court stated. At paragraph 85 of the decision, the Court held as follows:“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.

32. From the above passage, it appears to be an easy task to immediately interpret it to mean that all pending industrial accident cases that had already been filed in Court before the enactment of WIBA were all to proceed before the Courts where they had been filed. But is it really that easy?

33. The above interpretation is not that easy to embrace because of the unique circumstances of this case. I say “unique” because the suit the subject of the Appeal herein was filed on 11/04/2018, 5 months after the Court of Appeal had already pronounced itself and reversed the decision of the High Court. As at the time of filing the suit therefore, the judicial position was that Courts had no jurisdiction to handle industrial accident cases. According to Counsel for the 2nd Respondent, for this reason, this Appeal ought to fail since the date of filing of the suit, 11/04/2018, falls outside the period between 4/03/2009 when the High Court delivered its decision and 17/11/2017 when the Supreme pronounced itself. My understanding of the argument by Counsel for the 2nd Respondent therefore is that, although an Appeal had been lodged before the Supreme Court, there was no justification why the suit was filed in Court when the Court of Appeal had by that time already pronounced itself on the issue of jurisdiction. The question therefore is whether this argument is valid?

34. On my part, I agree that by the time that the Appellant filed the suit before the Magistrate’s Court, the Court of Appeal had already pronounced the position of the law. The Appellant should not therefore have still proceeded to lodge the suit before the Courts. However, it is also true that by the time that the suit was filed, an Appeal decision against the Court of Appeal was pending before the Supreme Court. Considering the possible effect of the pending decision, the same scenario elicited a lot of interest and concerns within the legal fraternity. Inasmuch as the Court of Appeal decision was the one prevailing at that moment, no one knew how the Supreme Court would rule. I take judicial notice of the fact that during that intervening period, there was heated debate and confusion within the legal and labour professions on which of the 3 available options to take; first, whether claimants should file new cases before the Director as provided by WIBA and reiterated by the Court of Appeal or secondly, whether they should still continue filing cases before the Courts while awaiting the Supreme Court to render its decision or thirdly, whether they should simply sit back and wait until the Supreme Court pronounced itself.

35. The confusion was even more dire for cases in which there was the threat of expiry of the 3 years limitation period before the claims were rendered statute barred. As a result, many Advocates opted to take the plunge by continuing to file suits in Court despite the risk of being caught up in the scenario in which the Appellant now finds himself in. Should the Appellant, like many others, be excused for taking this risk?

36. In answering the above question, I again refer to the Supreme Court decision in which even after declaring that all industrial accident cases must be filed before the Director, and being alive to the confusion brought out by the situation recounted above, it went ahead and guided that parties who had pending cases before the Courts during the subject period had a legitimate expectation that their suits were validly before the Courts. In my view, it is this spirit set out in the Supreme Court decision that any Court determining the rights of parties arising out of the confusion referred to above ought to be guided.

37. My interpretation of this general spirit is that all industrial cases instituted in the wrong fora (Courts) during the period between the date of the enactment of WIBA on 2/06/2008 and the date of the Supreme Court decision on 3/12/2019 should all be allowed to remain in the Courts up to determination. I would not therefore, as suggested by Counsel for the 2nd Respondent, limit the subject period to be only up to 17/09/2017 when the Court of Appeal delivered its decision. The spirit of the Supreme Court decision tilts towards construing that period to include up to the date of the Supreme Court decision. I will not therefore penalize the Appellant for instituting its suit at the Magistrate’s Court even though the same was filed 5 months after the Court of Appeal had already delivered its decision.

38. I am persuaded by the findings of my brother, Radido J, in West Kenya Sugar Co. Ltd v Tito Lucheli Tangale[2021] eKLR where, faced with a similar situation, he held as follows;“42. Therefore, in this Court's view, those citizens or employees who lodged their claims with the Courts from 22 May 2008 when the High Court issued stay orders to 4 March 2009 when a final declaration of inconsistency was made were acting on the strength of the law.46. In the Court's respectful view, bar any stay orders, all claims which were lodged with the Courts from 22 May 2008 to 3 December 2019 being claims underpinned by judge-made or judge declared law were validly within the jurisdiction of the Courts.Access to justice47. The judicial part of the state is not the only arbiter and/or adjudicator of justice. Article 48 of the Constitution now recognises access to justice, but it has not limited the dispensation of the right to the Courts since Article 159(2)(c) requires the promotion of alternative dispute resolution.48. In light of this, in this Court's view, subscribing to the position taken by the Appellant that all claims lodged with the Courts after 2 June 2008 should not be entertained because of jurisdiction would be antithetical to the right to access justice since the litigants who moved the Court after 22 May 2008 did so on the assurance of judge declared law that they could present their disputes to the Courts.49. The Court says so because the employees who moved the Court on the strength of judge declared law would be met with an insurmountable plea of limitation because section 26 of the Work Injury Benefits Act has prescribed time within which an accident should be reported to the Director of Occupational Safety and Health.50. Sending these Claimants from the seat of justice under these circumstances would, therefore, be a source of great injustice for reasons beyond their control.Legitimate expectation51. The doctrine of legitimate expectation has its roots in administrative law. In this jurisdiction, it emerged with the establishment of a permanent Constitution Court in the 1990s. It is now well entrenched in the jurisprudence of the Country.52. The Court of Appeal and the Supreme Court invoked the doctrine to give life and therefore render justice to the Claimants who had lodged their work-injury claims with the Courts prior to the coming into effect of the Work Injury Benefits Act.53. In the view of this Court, these litigants who filed their disputes with the Courts from 22 May 2008 to 3 December 2019 on the firm belief that the judge declared law was the valid law in place then, are entitled to successfully assert legitimate expectation in having the claims heard to a conclusion before the Courts where they had been lodged.”

39. Radido J reiterated the above position in his decision in the subsequent case of Linet Osebe Momanyi & another (suing as personal representatives & legal administrators of the estate of Douglas Onsario Mageto) v Kisii County Government [2021] eKLR. The Judge also followed the same logic in several other of his decisions in various subsequent cases.

40. I also cite the decision of O. Makau J in the case of Cyrus Ombuna Machina v Safaricom Limited [2020] eKLR in which he held as follows:“12. The claimant has urged the court to spare the claim and refer it to the Director under WIBA. The respondent prays that I dismiss the claim against her. Dismissing the claim without considering its merits would be a miscarriage of justice. I will also not strike it out because as at 2017 when the suit was filed, the law in place allowed him to file the suit in court by dint of the judgment of the High Court in Petition 15 of 2008. I therefore refer the dispute to the Director under WIBA to hear and determine it under the relevant provisions of WIBA.”

41. There is also the decision in the case of Kamande & another (Suing as Administrators and Personal Representatives of the Estate of Josephat Macharia Muigai - Deceased) v ACE Freight Limited (Cause 2204 of 2017) [2022] KEELRC 1275 (KLR) (12 July 2022) (Judgment) in which the following was stated:“59. Without belabouring the point, this suit was commenced on November 6, 2017 before the Court of Appeal pronounced itself in Attorney General v Law Society of Kenya & another (supra) on November 17, 2017. Before this decision, sections 4, 7, 10 (4), 16, 21(i), 23(1), 25(1), (3) 51(1), (2) and 58(2) had been declared unconstitutional by Ojwang J. in High Court Petition 185 of 208. 60. In a nutshell, the Claimant had no other forum to litigate the claim and as was held by Radido J. in West Kenya Sugar Co. Ltd v Tito Lucheli Tangale [2021] eKLR, the Court has jurisdiction to hear and determine the suit herein.61. The Learned Judge was categorical that“In the view of this Court, these litigants who filed their disputed with the Courts from May 22, 2008 to December 3, 2019 on the firm belief that the judge declared the valid law in place then, are entitled to successfully assert legitimate expectation in having the claim heard to a conclusion before the Courts where they have been lodged.”62. The Court is guided by these sentiments and is in agreement with them.63. Instructively, the Court of Appeal overturned the decision of the High Court on the unconstitutionality with the various sections of WIBA other than section 7 (in so far as it provides for the Minister’s approval or exemption) and Section 10(4).64. Before this decision, the law was as declared by Ojwang J. and reference of claims to the Director, Occupational Safety and Health Services (DOSHS) could not arise.65. For the foregoing reasons, it is the finding of the Court that it has jurisdiction to hear and determine the suit herein.”

42. I am of course aware of other Court decisions which appear to have advanced a conflicting position. I have in mind for instance, the decision of Keli J, delivered in West Kenya Sugar Co Ltd v Shirandula (Employment and Labour Relations Appeal E005 of 2021) [2022] KEELRC 13284 (KLR) (24 November 2022) (Judgment), and also the decision of Gakeri J, in Kariri Limited v Gisiaina (Appeal E123 of 2021) [2023] KEELRC 1184 (KLR) (17 May 2023) (Judgment).

43. On my part, I choose to follow and follow the reasoning and holding of Radido J as I find that it best advances the spirit of Article 159(2)(e) of the Constitution of Kenya, 2010 which obliges the Courts in exercising judicial authority to be guided by among others, the principle that “the purpose and principles of this Constitution shall be protected and promoted”.

44. Regarding the Gazzette Notice 5476 issued by the Honourable the Chief Justice in the Kenya Gazette of 28/04/2023, the same was titled “Practice Directions Relating to Pending Court Claims Regarding Compensation for Work Related Injuries and Diseases Instituted Prior to the Supreme Court Decision in Law Society of Kenya vs Attorney General and Another, Petitioner No. 4 of 2019; (2019) eKLR”.

45. The Directions, at paragraph 4, provide that the objectives thereof are as follows:a.Consolidate and standardize practice and procedure in the Employment and Labour Relations Court and the Magistrates Courts in relation to claims for compensation for work related injuries and diseases instituted prior to the Supreme Court decision on 3rd December 2019, which are pending in Courts;b.Enhance access to justice;c.Facilitate timely and efficient disposal of cases that were filed prior to the Supreme Court decision; andd.Ensure uniformity and court experience.”

46. The Directions then, at paragraph 7 provide as follows:“Claims filed after commencement of WIBA but before the Supreme Court decisionTaking 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 ion WIBA including Section 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 the 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 ………… to lodge their claims in Court. Therefore,a.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 completion before the said Courts.………………………………………………………………………..”

47. I am satisfied that the quoted passages of the Practice Directions above vindicate my finding that the general spirit of the Supreme Court decision is that all industrial cases instituted before the Courts during the period between the date of the enactment of WIBA on 2/06/2008 and the date of the Supreme Court decision on 3/12/2019 should all be allowed to remain in the Courts up to determination. The passage also lends credence to my finding that the period which should be excused for filing the cases before Courts should not be limited to only up to 17/09/2017 when the Court of Appeal delivered its decision but logically, should be extended to include up to the date of the decision of the Supreme Court decision, 3/12/2019.

48. In the circumstances, I find that this Appeal is merited.

Final Orders 49. The upshot of the findings above is that I rule as follows:i.This Appeal succeeds in its entirety and the Ruling dated 16/09/2021 delivered in Eldoret CMCC No. 387 of 2018 is hereby set aside.ii.The said suit shall proceed to its logical conclusion before the trial Court before any other Magistrate apart from Hon. Odenyo for the sole reason that the Magistrate having already determined the issue of jurisdiction against the Appellant, the Appellant may feel that the Magistrate’s mind is already influenced against him.ii.Considering the conflicting decisions of different Courts on the matter determined herein, I am satisfied that the Respondent had proper justification to defend this Appeal. In the circumstances, I direct that each party bears its own costs of this Appeal.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1STDAY OF DECEMBER 2023WANANDA J. R. ANUROJUDGE