[2023] KEHC 26194 (KLR)

Stecol Corporation v Wanjala (Civil Appeal 157 of 2019) [2023] KEHC 26194 (KLR) (Civ) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26194 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 157 of 2019

JN Njagi, J

November 29, 2023

Between

Stecol Corporation

Appellant

and

Godfrey Shikuku Wanjala

Respondent

(Being an appeal from the judgment and decree of Hon. I. Orenge, SRM, in Milimani CMCC No. 3182 of 2018 delivered on 1st March 2019)

Judgment

1. This is an appeal emanating from the judgment in Milimani CMCC NO. 3182 of 2018 wherein the learned Magistrate entered judgment in favour of the Respondent herein in the sum of Ksh.650,000/= in general damages and Kshs. 3,000/= in special damages following an injury sustained while on duty as an employee of the Appellant. The Appellant was aggrieved by the judgment and filed this appeal.

2. The Appellant raised the following grounds of appeal;(a)That the Learned Trial Magistrate erred in holding the Appellant liable in negligence in the ratio of 100% to the Respondent and awarding damages of Kshs. 650,000/= to the Respondent;(b)That the Learned Trial Magistrate erred in law and in fact in failing to make a finding that the Appellant ’s Defence raised serious triable issues and the plaintiff should suit should have been dismissed as opposed to the awarding of general damages;(c)That the Learned Trial Magistrate erred in law and in fact by finding that the Respondent had proved his case against the Appellant on a balance of probability;(d)That the Learned Trial Magistrate erred in law and in fact by proceeding with the matter despite the court lacking jurisdiction to hear and determine work injury;(e)That the Learned Trial Magistrate erred in law and in fact and as a result arrived at a wrong decision to the prejudice of the Appellant.

3. It was the Respondent`s case that the Appellant had not provided him with a safe working environment as a result of which he fell down and fractured his hand while offloading goods from a lorry. The Appellant denied the claim.

4. The appeal was disposed of by way of written submissions.

Appellant ’s submissions 5. The Appellant through his advocates submitted that it had provided a safe working environment to the Respondent in accordance with section 6(2) of the Occupational Safety and Health Act no. 15 of 2007. That the Respondent had not produced any evidence to confirm that the injuries sustained were due to any act or omission on the part of Appellant. That the Respondent had failed to prove any particulars of negligence on the part of the Appellant.

6. The Appellant further submitted that the trial court did not cite any authorities to support its award and therefore it is impossible to tell how the court arrived at the award of Ksh.650,000/=. The Appellant placed reliance in the case of Kanyungu Njogu vs. Daniel Kimani Maingi ( 2000) eKLR in support of its contention that the Respondent had not proved its case on a balance of probabilities.

7. Counsel for the Appellant further submitted that the trial court did not have the jurisdiction to determine work injury claims.

Respondent’s submissions 8. In response, the Respondent contended that this court does not have jurisdiction to hear the appeal. That the appeal should have been filed with the Employment and Labour Relations Court (ELRC). In support of this contention, the Appellant placed reliance in Civil Appeal No. E322 of 2021 Kenya Red Cross Society vs. Kennedy Ajami Bende; Owners of the Motor Vessel Lillian X vs. Caltex Oil Ltd [1989] KLR 1 and Samuel Kamau Macharia vs. Kenya Commercial Bank & Others SCK Application No. 2 of 2011 [2012] eKLR. He also submitted that the decree attached to the record of appeal is not certified as a true copy of the original and this alone is a fatal error and cannot be cured.

9. The Respondent avers that the Appellant never demanded for any evidence in connection with the injuries sustained. In support of the averment that the appeal lacks merit the Respondent placed reliance in Nairobi Civil Appeal No. 34 of 2017 Fumcom Ltd vs. Nelson Muguku and Civil Appeal No. E662 of 2021 Kenya Red Cross Society vs. Kenned Ajami Bende.

Analysis and Determination 10. It is the duty of this court, as the first appellate court, to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing its own conclusions from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand. (See the Court of Appeal case of Gitobu Imanyara & 2 Others –vs- Attorney General [2016] eKLR).

11. I have carefully considered the pleadings and submissions filed herein. The main issue that must be determined first before going into the substratum of the appeal is whether this court has jurisdiction over this matter.

12. A Court’s jurisdiction flows from either the Constitution or statute or both. Thus, this Court can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law – See Supreme Court decision in Samuel Kamau Macharia vs. Kenya Commercial Bank & Others (supra).

13. Similarly, in The Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 the Supreme observed that where the supreme law exhaustively provides for the jurisdiction of a Court, the Court must operate within the constitutionally allowed limits. It cannot expand its jurisdiction through judicial craft or innovation.

14. The jurisdiction of the High Court is established under Article 165 (3) of the Constitution. Article 165 (3) (a) provides that the High Court shall, inter alia, have unlimited original jurisdiction in Criminal and Civil matters subject to clause (5).

15. On the other hand, the Employment and Labour Relations Court is established under Article 162 (2) of the constitution which provides;“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –(a)Employment and Labour Relations;

16. The Constitution goes further to state that parliament shall determine the jurisdiction of the courts contemplated in clause (2).

17. Pursuant to the provisions of Article 162 (2), the legislature enacted the Employment and Labour Relations Court Act No. 20 of 2011. Section 12 (1) of this Act sets out the jurisdiction of the ELRC as follows:(1)The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to in accordance with Article 162(2) of the constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including;(a)disputes relating to or arising out of employment between an employer and an employee;…………………………

18. Further Section 87 of the Employment Act No. 11 of 2007 provides as follows:-Subject to the provisions of this Act whenever –a.an employer or employee neglects or refuses to fulfill a contract of service; orb.any question, difference or dispute arises as to the rights or liabilities of either party; orc.touching any misconduct, neglect or ill-treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court.1. No court other than the Industrial court shall determine any complaint or suit referred to in subsection (1).2. This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.

19. Therefore, since the High Court’s power and authority is derived from the Constitution, its jurisdiction is limited. In establishing the Courts with the status of the High Court to deal with employment and labour relations disputes, the people of Kenya appreciated the importance of these specialized Courts.

20. Under Article 165 (5) (b), the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 16(2) of the constitution.

21. In this case, a perusal of the pleadings and the record of appeal reveal that the substance of the dispute was that the Respondent got injured while in the employment of the Appellant. The cause of action was therefore a work injury claims against the Appellant. A stipulated under section 17 (c) of the Employment Act, work injury claims fall within “disputes relating to or arising out of employment between an employer and an employee”. Section 12 (1) of the Employment and Labour Relations Court Act specifically states that the ELRC shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the provisions of that Act or any other written law which extends jurisdiction to that court relating to employment and labour relations.

22. In Juma Nyamawi Ndungo & 5 Others vs. Attorney General; Mombasa Law Society (Interested Party) [2019] eKLR the Court held that disputes relating to or arising from the employment relationship between an employee and an employer are to be heard by the Employment and Labour Relations Court. In Saidi Mohammed vs. Diamond Industries Ltd (2018) eKLR it was held that the Employment and Labour Relations Court has appellate jurisdiction in disputes relating to work injury claims.

23. The consequence thereof is that appeals in relation to work injuries should be handled by the Employment and Labour Relations Court. In the premises, the appeal herein falls within the jurisdiction of the ELRC. This was the position adopted in United States International University (USIU) vs. Attorney General Nairobi Petition 170 of 2012 [2012] eKLR, in the court stated as follows:“(41)Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Such a situation would lead precisely to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current court …….(43)The intention to provide for a specialist court is further underpinned by the provisions of Article 165(6) which specifically prohibit the High Court from exercising supervisory jurisdiction over superior courts. To accept a position where the Industrial Court lacks jurisdiction to deal with constitutional matters arising within matters of their competence would undermine the status of the court. Reference of a constitutional matter to the High Court for determination or permitting the filing of constitutional matters incidental to labour relations matters would lead to the High Court supervising a superior court. Ordinarily where the High Court exercises jurisdiction to interpret the Constitution or enforce fundamental rights, its decisions even where declaratory in nature will require the court to follow or observe the direction. This would mean that the High Court would be supervising the Industrial Court which is prohibited by Article 165(6).(44)…… The Industrial Court is a specialist court to deal with employment and labour relations matters. By virtue of Article 162(3), section 12 of the Industrial Court Act, 2011 has set out matters within the exclusive domain of that court. Since the court is of the status of the High Court, it must have the jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret the constitution and fundamental rights and freedoms is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling within the provisions of section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it.”

24. It is therefore my holding that I have no jurisdiction to entertain the appeal herein as the same falls within the jurisdiction of the Employment and Labour Relations Court. The question then is whether I should strike out the appeal for lack of jurisdiction or transfer it to the court with jurisdiction.

25. In Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2020] eKLR, where Chitembwe J. was considering whether to transfer a matter to the court with the proper jurisdiction held as follows:In my view lack of jurisdiction is limited to the handling of the dispute at hand substantially. Transfer or referring cases to the Court with the proper jurisdiction is an administrative matter which is aimed at facilitating the speedy disposition of the case at hand. It has nothing to do with jurisdiction. All what the Court will be saying is that “you have come to the wrong forum, please take your file to the correct forum”. I don’t think such an order needs jurisdiction or can be held as null and void……I do opine that the contrary view will be running against the provisions of Article 159 of the Constitution in relation to procedural technicalities.

26. In Wycliffe Amukowa & 2 others v Machakos University [2022] eKLR, Odunga J. (as he then was) transferred the case to the ELRC when he found that he had no jurisdiction to hear the matter.

27. In Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, the Supreme Court remitted a suit filed in the High Court and thereafter transferred to the Employment and Labour Relations Court to the CEO of the Retirement Benefits Authority which under the Act had original jurisdiction to hear the dispute after finding that both the High Court and Employment and Labour Relations Court had no jurisdiction to hear the matter.

28. In this case, I am satisfied that the appeal herein can be properly dealt with by the ELRC. The order which commends itself to me and which I hereby make is that the appeal be transferred to the Employment and Labour Relations Court for hearing and determination. The order is made in cognizance of the fact that the said Court is a Court of equal status as the High Court and is empowered to grant the reliefs sought herein. That being the case, there is no reason for me to delve into the other issues raised for determination by the Appellant.Orders accordingly. The costs to be in the cause.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF NOVEMBER, 2023J. N. NJAGIJUDGEIn the presence of:Ms Wekesa holding brief for Mrs Kariuki for AppellantMr. Okao for RespondentCourt Assistant – Amina