https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12376

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT BUNGOMA** **CIVIL APPEAL NO. E084 OF 2025** **SHABAN WALELA SITUMA..............................................APPELLANT** **VERSUS** **ERICK NYAKUNDI NYAMARI.........................................RESPONDENT** *(An appeal from the Judgment and decree of the Chief Magistrate's Court at Bungoma delivered on 20/05/2025 in Bungoma CMCC No. 171 of 2018 by Hon. W.J. Gichimu CM)* **RULING** **Introduction** 1. The appellant being dissatisfied by the Judgment of Hon. W.J.Gichimu in Bungoma CMCC No.171 of 2018 delivered on 20th May, 2025, filed the instant appeal dated 23rd May, 2025. 2. By a Notice of Preliminary Objection dated 27th November 2025, the Respondent objects to the jurisdiction of this Court to entertain this appeal. The objection is anchored on **Article 162(2) (a)** as read with **Article 165(5) (b)** of the Constitution of Kenya, 2010, contending that only the Employment and Labour Relations Court (ELRC) has jurisdiction over appeals arising from work injury claims. **Background** 1. By a plaint dated 13th April, 2018 the respondent sued the appellant for general damages for pain and suffering, past, present and future medical & nursing expenses, special damages of Ksh. 75,460/= and loss of future earning capacity. He pleaded that on 9/1/2018 he was lawfully on duty aboard motor vehicle registration number KAT 033H-ZA 4545 under the employment and instruction of the 1st Appellant travelling along Ekitale-Nzoia Road when at Namirembe areas, the said motor vehicle violently lost control, veered off the road hitting a gum tree as a result of which the plaintiff fell down and was ran over by the hind tyre of the vehicle thereby occasioning him severe injuries. 2. At Paragraph 4 of the Plaint, the respondent averred that he was an employee of the 1st Appellant working as a loader. Further at Paragraph 5, the respondent averred that it was express or implied term of the contract of employment obliging the employer (the Appellant herein) to take reasonable precautions for the Respondents safety in the course of his work. The Respondent averred that the accident occurred due to breach of contract and particularized the breach of contract and or statutory duty of care as well as negligence on the part of the 1st Appellant. 3. The 1st Appellant denied the claim by a joint statement of defence dated 23rd April, 2018 and prayed that the Respondents suit be dismissed with costs. In the statement of defence and witness statement, the Appellant denied having the Respondent as an employee and hence had no duty to protect the safety of the respondent. 4. Both parties framed issues for determination as: 1. ***whether the honourable court had jurisdiction to entertain the claim*** 2. ***whether the Plaintiff/ Respondent was an employee of the 1st Appellant/ Defendant*** 3. ***whether the Plaintiff/ Respondnet has proved his case as against the 1st Appellant/ Defendant.*** 5. It is not in dispute that the respondent’s plaint pleaded that he was an employee of the appellant working as a loader, and that he sustained injuries in the course of employment when the appellant’s motor vehicle veered off the road. The claim was framed in negligence and breach of contract, expressly invoking the employer’s duty of care. 6. The trial court, while noting the employment issue, nonetheless proceeded to render judgment without conclusively determining the employment relationship. Ground 3 of the Memorandum of Appeal faults the trial court for failing to appreciate that the claim fell under the Work Injury Benefits Act (WIBA), 2007. 7. It is worth noting that, both counsel while appearing before the trial court, are recorded as having framed as an issue for determination: ***“whether an employer-employee relationship existed between the parties?”*** 1. The Lower Court in Bungoma in its judgement dated 20th May, 2025 as regards the issue of employment stated as hereunder: ***“I am therefore satisfied that the plaintiff was travelling aboard the subject tractor. The plaintiff may or may not have been an employee of the 1st defendant. In whichever case, he was lawfully on the subject matter with the authority of the defendants’ driver.”*** 1. It is also on record that the claim stood stayed for a considerable period because it was a work injury claim that could not proceed until the Honourable Chief Justice issued directions on such claims. The directions were later given vide Gazette Notice No. 5476 of 28th April 2023. 2. It is against this background that the Respondent, upon being served with the Memorandum of Appeal, raised the present Preliminary Objection. 3. Learned counsel for the Respondent submits that a perusal of the Plaint leaves no doubt that the claim before the trial court was, in substance, one between an employer and an employee for injury sustained in the course of employment, and that ground 3 of the Appellant's own Memorandum of Appeal confirms this characterization. 4. Counsel submitted that Article 165(5)(b) of the Constitution expressly excludes the High Court from matters reserved for the courts established under Article 162(2). Further, counsel urged that Section 12 of the Employment and Labour Relations Court Act, 2011 and Section 52(2) of WIBA vest the ELRC with the requisite jurisdiction including appellate jurisdiction over disputes and decisions arising from employment relationships and work injury claims. On this basis, counsel urged that only the ELRC, and not this Court, can entertain an appeal of this nature. 5. In support of their submissions the Respondent relies on a number of authorities: ***Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] eKLR****,* for the principle that jurisdiction is everything, and that a court which finds itself without jurisdiction must down its tools; ***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR*,** for the proposition that a suit or, by extension, an appeal filed in a forum without jurisdiction is a nullity incapable of being cured by transfer, ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,*** for the principle that an objection raising a pure point of law, determinable on the face of the pleadings without evidence, is properly taken as a preliminary objection; ***Arua v Vegpro (K) Limited & another, Bungoma High Court Civil Appeal No. 10 of 2018 [2025] KEHC 13696 (KLR) (2 October 2025) (Ruling),*** a decision of this Court on materially similar facts, holding that a hybrid pleading in negligence and breach of contract does not by itself confer jurisdiction where the injury arose in the course of employment, and that the applicable law in such cases is WIBA, which ousts the ordinary jurisdiction of the High Court over such appeals; ***Muito v Mwangi & 2 others, Nairobi Misc. Civil Case No. E018 of 2023 [2024] KEHC (14517) KLR (15 November 2024) (Ruling), and Wamathu Gichoya v Mary Wainoi Magu [2015] eKLR (applying Kagenyi v Musiramo [1968] EA 43),*** for the principle that a court can only transfer a matter to another court if the transferring court itself had jurisdiction over the subject matter in the first place; **Nickson M. Chanda v Angela Kamwaria [2009] eKLR,** for the principle that a suit instituted in a court without jurisdiction is incurably defective and as good as non-existent; and **Gaika Kimani Kiarie v Peter Kimani Kiramba [2020] eKLR,** for the principle that a mistake of counsel in filing in the wrong forum does not, by itself, entitle a litigant to a transfer where the forum of filing had no jurisdiction at all. 6. On this basis, the Respondent urges the Court to find that it lacks statutory jurisdiction and to strike out the appeal with costs. 7. Learned Counsel for the Appellant urged in Submissions that in the appellants defence at the lower court, they denied having employed the respondent herein hence there was no relationship of employer-employee. Further that with the respondent having filed his case at the Magistrate court as Civil Suit but not in the ELRC, it was right that the appeal be filed at the High court. 8. Counsel further submitted that in the event this court would find that it cannot hear the appeal, the same ought to be transferred to the appropriate court. Counsel urged that it would be an injustice to strike out the appeal on grounds of Jurisdiction whereas it was clear that the court has power or jurisdiction to refer/ remit or transfer the matter to ELRC. 9. In support of their submissions the Appellant relies on a number of authorities: ***China Wu Yi –v- Eric Langat (2025), Kaiga V Das (2023) KEELRC 2194 and Casmir Nyakundi Nyaberi –v- Mwakikar Agencies Ltd (2016) eKlr,*** for the principle that jurisdiction and Liability Hinge on proof of employment and that the case having emanated from a civil court, it should proceed to the High Court for Appeal and not a specialized Court **(ELRC). *Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR,*** for the proposition that it’s only a suit and not an appeal filed in a forum without jurisdiction is a nullity incapable of being cured by transfer. ***Pamoja Women Development Programme & 3 Others vs Jackson Kihumbe Wangombe (2016) Eklr,*** ***Francis Kibugi Wanjohi vs Kenya Railways Corporation (2020) Eklr***, and ***Elijah Ongwenyi Manoti vs Apex Steel Ltd (2016) eKLR*** for the principle that the court has powers or jurisdiction to refer, remit or transfer a matter filed at the wrong forum to the appropriate one. 10. On this basis, the Appellant urges the Court to find that it has statutory jurisdiction to handle the appeal and in the alternative, should the court find it has no jurisdiction, the same be referred to the ELRC for hearing. **Issue for Determination** 1. The narrow issue for determination is: * 1. ***whether this Court has jurisdiction to hear and determine Civil Appeal No. E084 of 2025.*** **Analysis and Determination** 1. I have considered the submissions and record filed. The characterization of the claim as one arising from an employer-employee relationship and injury in the course of employment is not disputed. It is admitted on the face of the Plaint (paragraphs 4 and 5), and is indeed the very foundation of ground 3 of the Appellant's own Memorandum of Appeal, which faults the trial court for not applying WIBA. 2. Where the facts necessary to determine a jurisdictional challenge are not in dispute and appear on the face of the pleadings and record, the objection is properly raised as a preliminary objection within the meaning of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** 3. In the celebrated decision in ***Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR,*** it was held that: ***“Jurisdiction is everything, and without it, a court must down its tools. Jurisdiction is not a procedural technicality; it is a threshold question that determines whether a court has power to act at all.”*** 1. The pleadings herein disclose that the respondent was injured while working as a loader for the appellant. The claim was pleaded in both negligence and breach of contract. Here, the injury is intimately connected with the employment relationship. The claim is therefore a work injury claim governed by WIBA. 2. In ***Arua v Vegpro (K) Ltd [2025],*** this Court held that: ***“Hybrid pleadings in negligence and breach of contract do not confer jurisdiction where the injury arose in employment. The substance of the claim, not the label placed on it, determines jurisdiction.”*** 1. I respectfully agree with and adopt that reasoning. The substance of a claim, not the label placed on it by counsel, determines the applicable jurisdictional regime. On the pleadings before me, the injury is averred to have occurred to the Respondent while working as a loader for the Appellant. The claim is in substance a work injury claim. 2. Article 162(2) (a) of the Constitution establishes the ELRC to hear disputes relating to employment and labour relations. Section 12 of the ELRC Act confers jurisdiction over disputes arising from employment contracts and workplace injuries. Article 165(5) (b) expressly excludes the High Court from matters reserved for courts established under Article 162(2). 3. The ***Supreme Court in Law Society of Kenya v Attorney General & another [2019] eKLR*** affirmed that claims for compensation arising from injuries suffered by an employee in the course of employment fall within the framework of WIBA, with appellate jurisdiction lying to the ELRC. 4. I have also considered the Appellant's submission that the Respondent, having participated in the trial without objection, ought to be estopped from raising the jurisdictional question at this stage. This submission cannot succeed. It is trite, and was reaffirmed by the Court of Appeal in ***Attorney General v Law Society of Kenya & another (supra),*** that: ***“a court's jurisdiction flows only from the Constitution or statute, or both; a court cannot arrogate to itself jurisdiction it does not possess, and parties cannot, whether by conduct, consent, acquiescence, or agreement, confer jurisdiction on a court that does not otherwise have it.”*** 1. A challenge to jurisdiction goes to the root of the matter and may be raised at any stage of the proceedings, including for the first time on appeal, or indeed suo motu by the Court itself. I hereby find that the Respondent's participation in the trial, however extensive, cannot cure what is a constitutional bar. 2. Having found that this Court lacks jurisdiction, the remaining question is the appropriate remedy. I note that Court of Appeal authority is not entirely uniform on whether a matter filed in a forum without jurisdiction may be transferred to the correct forum, or must simply be struck out. 3. In ***Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR,*** the Court of Appeal favoured transfer. In the later decision of ***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR***, a different bench of the Court of Appeal held that a suit filed without jurisdiction is a nullity from the outset, and that there is, in law, nothing in existence capable of being transferred; to permit transfer would be to sanctify an incompetent suit through what amounts to judicial craftsmanship. 4. I am persuaded that the latter, more recent statement represents the sounder and prevailing position, and it is consistent with the reasoning in ***Nickson M. Chanda v Angela Kamwaria [2009] eKLR*** and with the requirement in ***Kagenyi v Musiramo [1968] EA 43 (as applied in Wamathu Gichoya v Mary Wainoi Magu [2015] eKLR and Muito v Mwangi & 2 others (supra))*** that a transferring court must itself have had jurisdiction over the subject matter for a transfer to be competent. This Court, having no jurisdiction over the subject matter of this appeal, has none to transfer either. 5. I am accordingly unable to direct a transfer of this appeal to the Employment and Labour Relations Court. This is without prejudice to whatever remedy, if any, may be available to the Appellant before the proper forum, a question not before me and on which I express no opinion. **G. Disposition** 1. For the foregoing reasons, I make the following orders: * 1. **The Preliminary Objection dated 27th November 2025 is hereby upheld;** 2. **This Court finds that it lacks jurisdiction to hear and determine Civil Appeal No. E084 of 2025;** 3. **Civil Appeal No. E084 of 2025 be and is hereby struck out for want of jurisdiction;** 4. **The Respondent shall have the costs of the Preliminary Objection and of the appeal.** It is so ordered. **DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 30Th DAY OF July 2026.** **M. SHARIIF** **JUDGE**