[2025] KEHC 3977 (KLR)

Wabomba v Kartar Singh Dhupar & Co Ltd (Civil Appeal E375 of 2020) [2025] KEHC 3977 (KLR) (Civ) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3977 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E375 of 2020

TW Ouya, J

March 27, 2025

Between

Domiano Wabomba

Appellant

and

Kartar Singh Dhupar & Co Ltd

Respondent

(Being an appeal from the ruling and order of Hon. E.M. Kagoni (Mr.) (PM) delivered on 3. 12. 2020 in Milimani CMCC No. 2259 of 2013)

Judgment

Background 1. This appeal derives from the ruling and order made by E.M. Kagoni (Mr.) (PM) on 3. 12. 2020 in Milimani CMCC No. 2259 of 2013 (the suit). At the onset, Domiano Wabomba (hereafter the Appellant) instituted the suit by a plaint dated 23. 04. 2013 seeking reliefs in the nature of general and special damages against Kartar Singh Dhupar & Co. Ltd (hereafter the Respondent) for alleged breach of contract and/or statutory duty of care, arising out of an employer-employee relationship which subsisted between the parties at all material times.

2. The Appellant averred that pursuant to the employment contract, the Respondent owed him a duty of care, under common law. The Appellant further averred that sometime on or about 2. 07. 2011 while he was lawfully travelling to work aboard the motor vehicle registration number KAS 761M, the same was so carelessly driven and/or controlled that it collided with another motor vehicle registration number KAZ 615J, causing the Appellant to sustain the injuries particularized in the plaint. The Appellant attributed the accident and resulting injuries to breach of contract and/or statutory duty on the part of the Respondent, with the particulars thereof being set out in the plaint.

3. Pursuant to delivery of a ruling on 15. 08. 2018 thereby setting aside the interlocutory judgment previously entered in the suit, vide, the Respondent filed a statement of defence dated 22. 08. 2018 denying the key averments in the plaint and liability.

4. Subsequently, the Respondent filed a notice of preliminary objection dated 3. 03. 2020 challenging the competency of the suit before the trial court, on the following grounds:a.That the court lacks jurisdiction to hear and determine this suit as the requisite provisions of the Work Benefits Injury Act 2007 have not been complied with.b.That the court lacks jurisdiction to hear the suit owing to the principle of stare decisis.

5. Upon hearing thereof, the trial court vide the ruling delivered on 3. 12. 2020, found that the Appellant had not complied with the procedure set out in the Work Injury Benefits Act, 2007 (WIBA), thus upholding the preliminary objection and consequently striking out the Appellant’s plaint.

Substratum Of The Appeal 6. Being aggrieved by the aforementioned ruling, the Appellant sought to challenge it by filing the memorandum of appeal dated 18. 12. 2020 containing the following grounds:i.That the Learned Magistrate erred in striking out the Plaintiff’s suit.ii.That the Learned Magistrate erred in holding that the Court had no jurisdiction to hear a pending work injury claim filed before the Court of Appeal judgment delivered on 17th November 2017 in Civil Appeal No. 133 of 2011. iii.That the Learned Magistrate erred in holding that the Court lacked jurisdiction to hear the suit owing to the principle of stare decisis.iv.That the Learned Magistrate struck out the Plaintiff’s suit despite the practice direction on Work Injury Claims issued by the Honourable Chief Justice on 15th September 2020 which was binding on the Court.v.That the Learned Magistrate erred in law and fact by not considering that the Plaintiff had legitimate expectation that his case should be included under the Judicial Process which he had invoked prior to the enactment of Work Injury Benefits Act, 2007. vi.That the Learned Magistrate misdirected himself by holding that Sections 51 and 52 of the Work Injury Benefits Act, 2007 were applicable when the Plaintiff filed his suit in 2013 while the correct position was that these Sections had been declared null and unconstitutional by Ojwang J. on 4th March 2009. vii.That the Learned Magistrate erred in holding that the Appellant should have complied with Sections 51 and 52 of WIBA and yet these Sections had been invalidated by Ojwang J. on 4th March 2009 and there was no stay to his judgment pending appeal.viii.That the Learned Magistrate misinterpreted the decision of the Court if Appeal in Civil Appeal No. 133 of 2011 which was binding on him.ix.That the Learned Magistrate misinterpreted the decision of the Supreme Court when it considered the judgment of the Court of Appeal in Civil Appeal No. 133 of 2011. (sic)

7. The Appellant consequently seeks the orders hereunder, on appeal:a.The appeal be allowed and the Plaintiff’s suit be reinstated.b.The Ruling delivered on the 3rd December 2020 be set aside and this Honourable Court do make a finding in favour of the Appellant.c.The costs of this Appeal be borne by the Respondent. (sic)

Parties Submissions On Appeal 8. The appeal was canvassed by way of written submissions. In urging the court to allow the appeal as prayed, counsel for the Appellant argued that going by the decision rendered by the Court of Appeal on the subject, all pending suits pertaining to employment and related matters following the enactment of WIBA were to be concluded under the judicial processes invoked by the parties; which decision was later upheld by the Supreme Court on 3. 12. 2019.

9. Counsel went on to argue that following the aforesaid decision by the Court of Appeal, the former Chief Justice; David Maraga; issued a Circular directing that courts had jurisdiction to determine any disputes pending before them as at the time of the decision above, by dint of the principle of legitimate expectation. That resultantly, the current Chief Justice; Martha Koome; issued Practice Directions vide Kenya Gazette Notice No. 5476 published on 28. 04. 2023 to that effect following the decision by the Supreme Court, affirming the rendition by the Court of Appeal.

10. It is therefore counsel’s contention that in view of the fact that the Appellant’s suit was filed on 25. 04. 2013, the same was properly before the trial court and hence the said court ought not to have concluded that it lacked jurisdiction to entertain the suit and therefore ought not to have struck out the plaint therein. Counsel faulted the trial court for failing to take into account the above-referenced Superior Court decisions as well as the Practice Directions referenced hereinabove, all of which were binding upon it.

11. In retort, the Respondent’s counsel by way of the submissions dated 15. 11. 2023 firstly argued that the Appellant has purported to raise a new ground of appeal by way of his submissions; namely the ground touching on the Practice Directions. Nevertheless, counsel proceeded to submit that this court is in no way bound to apply the said Practice Directions, the same having been issued in an administrative capacity rather than in a legal capacity. Counsel borrowed from the decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR) in which the Supreme Court held thus:“The decision by the High Court in the instant appeal did not have the effect of setting aside the decision in the Isaiah Biwott case. There was merit in IEBC’s assertion that while the decision remained unchallenged, it was binding on all parties as well as the public at large. IEBC could not be faulted for relying on the decision in the Isaiah Biwott case as it was complying with a court decision. Though the decision was not binding on the High Court, it created a legitimate expectation for IEBC, that in carrying on its business with three commissioners, it was in compliance with the law. IEBC’s actions in carrying out the verification of signatures were lawful.”

12. The Respondent’s counsel equally submitted that at the time of filing suit, the issue of the proper avenue for hearing and determination of work injury and related claims was the subject of an appeal before the Court of Appeal and later on, the Supreme Court. Suffice it to say that counsel urged this court to depart from the Practice Directions mentioned hereinabove.

13. On the subject of legitimate expectation, counsel argued that the doctrine has been elaborated by the Court of Appeal in the manner hereunder, in the case of Paul Posh Aborwa v Independent Election & Boundaries Commission & 2 others [2014] KECA 875 (KLR):“...In this way, a balance is struck between the legitimate reliance interest of actors who make decisions based on a reasonable assessment of the state of the law at the relevant time on one hand and the need to allow constitutional jurisprudence to evolve over time on the other.”

14. Counsel contended that at the time of the Appellant’s institution of the suit before the lower court, WIBA was fully operational and hence the Appellant did not have any legitimate expectation as claimed, and yet he chose to bypass the provisions of WIBA. Counsel therefore concluded with the submission that the appeal is lacking in merit and that it therefore ought to be dismissed with costs.

Analysis And Determination 15. The court has considered the memorandum of appeal, the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This being a first appeal, the Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An 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 allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

16. Flowing from the above, it is trite law that an appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

17. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view the appeal lies with a single issue; namely, whether the learned trial magistrate was correct in his finding that the Appellant’s suit was fatal and incompetent, and therefore deserving of an order striking it out.

18. As earlier mentioned, the Respondent lodged the preliminary objection dated 3. 03. 2020 challenging the competency of the suit on the basis that the trial court lacked jurisdiction to entertain it, in view of non-compliance on the part of the Appellant, with the provisions of WIBA.

19. Upon hearing the parties on the preliminary objection, the learned trial magistrate rendered his decision as follows:“The question that arises to enable this court to settle the above issue is, what was the law applicable when the suit was filed? It is clear from the facts alleged as supporting the claim that the accident happened in the course of the Plaintiff’s duties as an employee of the Defendant. My understanding of the facts as alleged by the Plaintiff, strictly puts this matter in the domain of the Work Injury Benefits Act (herein referred to as WIBA) which is an Act of Parliament assented on 22. 10. 2007 and commenced on 20. 06. 2008. The law applicable in respect of work injury claims as at the date the Claim before this court was filed is in my considered opinion WIBA. The constitutionality of several provisions of the WIBA has been challenged in court and both the Court of Appeal and the Supreme Court have rendered their decisions. When the issue found its way to the Court of Appeal, the Court of Appeal decision in Attorney General v Law Society of Kenya & another [2017] eKLR deprived original jurisdiction of WIBA claims from the courts in the first instance and placed such jurisdiction in the realm of the Director. Since the present claim was filed in court on 25. 04. 2013, the law applicable as at the time was, the Court of Appeal’s decision in Attorney General v Law Society of Kenya & another (supra) which was delivered on 17. 11. 2017 which supported the view held in the Act by Sections 51 and 52. The Court held as follows;“Sections 51 and 52 provide for an appellate system. By the former, any person aggrieved by a decision of the Director may lodge an objection with the Director against such decision. The Director after considering the objection must give a written answer to the objection. In the answer he can vary or uphold his decision. In either case he must give reasons for his decision. It is subsection (2) which allows the “objector” to appeal the decision of the Director to the Industrial Court.”When the matter found its way to the Supreme Court in Petition No. 4 of 2019 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.”My understanding of the Supreme Court’s decision is that matters which had been filed and were on course prior to the date of enactment of the W.I.B.A ought to proceed to conclusion. This is my understanding of the legitimate expectation doctrine as espoused by the Supreme Court. All other matters which were filed after the enactment ought to be dealt with in accordance with the provisions of the W.I.B.A.It is clear to me that the original jurisdiction to such claims, as the one before me, is the Director.It is evidently clear that the Plaintiff did not comply with the procedure a result of which is fatal to his claim.In disposing off the Application I hereby make the following orders:-a.That the Preliminary Objection dated 03. 03. 2020 is hereby upheld.b.That the Plaint dated 23. 04. 2013 is struck out with costs to the Defendant.” sic

20. From the foregoing, it is apparent that this court is now being called upon to determine on appeal, whether the trial court had jurisdiction to entertain the suit and consequently, whether the trial court acted correctly by upholding the preliminary objection and therefore striking out the Appellant’s plaint.

21. The long-standing legal principle is that jurisdiction is everything and that without it, a court cannot perform any further action in a matter. This position was reaffirmed by the Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR when it held thus:“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

22. Upon re-examination of the record, it is not in dispute that the suit resulting in the present appeal is founded on the tort of breach of statutory and/or common law duty of care, arising out of a work injury claim. It is equally not in dispute that claims of such nature fall under WIBA upon its assent on 22. 10. 2007 followed by its commencement/coming into force on 2. 06. 2008. It therefore follows that as at the time the Appellant filed the suit on 25. 04. 2013, WIBA was operational.

23. Upon further re-examination of the record, the court observed that soon after WIBA’s enactment, an issue arose regarding the validity of certain sections therein including Section 23(1) which confers upon the Director of Occupational Safety and Health Services (the Director) the power to determine any claims arising from and relating to WIBA, and Section 52(1) and (2) which provides for the right of a party to object to and appeal against the decision rendered by the Director; thereby resulting in the lodging of High Court Constitutional Petition No. 185 of 2008 (Law Society of Kenya v Attorney General; Central Organization of Trade Unions (K) (Interested Party) where the petitioner to have the challenged sections declared null and void. Upon hearing thereof, the High Court vide the judgment delivered on 4. 03. 2009 declared Sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2), and 58(2) of the WIBA to be in conflict with the former Constitution of Kenya, and thus null and void. The full citation of the said decision is: Law Society of Kenya v Attorney General; Central Organization of Trade Unions (K) (Interested Party) [2009] KEHC 4250 (KLR).

24. The above decision triggered an appeal to the Court of Appeal namely Civil Appeal No. 133 of 2011 (Attorney General v Law Society of Kenya & another) whose full citation is: Attorney General v Law Society of Kenya & another [2017] KECA 176 (KLR)].

25. Upon consideration thereof, the Court of Appeal by way of its judgment delivered on 17. 11. 2017 reasoned in part, that:“Sections 51 and 52 provide for an appellate system. By the former, any person aggrieved by a decision of the Director may lodge an objection with the Director against such decision. The Director after considering the objection must give a written answer to the objection. In the answer he can vary or uphold his decision. In either case he must give reasons for his decision. It is subsection (2) which allows the “objector” to appeal the decision of the Director to the Industrial Court.The learned Judge found that the section was in conflict with section 82 of the former Constitution as, in his view, it was discriminatory, giving the “objector” alone the right of appeal while no such right is extended to the party on the other side of the dispute. In the context of section 51, an objector is the party who challenges the Director’s initial decision on liability and award of compensation. Section 52 makes a presumption that it is the same “objector” who may still be aggrieved by the answer of the Director for him to seek the intervention of Employment and Labour Relations Court. It is our considered opinion that a party in whose favour the decision is made may sometimes still be dissatisfied with the award and may wish to challenge the Director’s answer. However, this provision has the effect of only granting the right to appeal to an objector and not to the party on the opposite side or an affected person wishing to vary the award.The learned Judge himself observed that the drafting of the Act was not elegant. We ourselves think that, in its context this is a pure drafting error and although it may convey the meaning the learned Judge assigned to it, applying legislative intent we cannot think of any reason why in an adversarial litigation only one party would have a right of appeal. We, however, do not think the subsection is thereby inconsistent with the former Constitution. It is an error that can easily be amended by Parliament.”

26. In the end, the Court of Appeal set aside the High Court’s orders which had previously declared Sections 4, 16, 21 (1), 23(1), 25 (1) and (3), 52 (1) and (2) and 58(2) to be inconsistent with the former Constitution.

27. The above decision paved way for a second appeal to the Supreme Court, namely Petition No. 4 of 2019 lodged by the Law Society of Kenya and seeking to set aside the decision by the Court of Appeal and to affirm the High Court’s decision. Upon consideration thereof, the Supreme Court in concurring with and affirming the decision by the Court of Appeal, pronounced itself in the following manner, vide the judgment delivered on 3. 12. 2019 under the citation Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR):“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.The above proposition would be the most prudent way for a judicial system to operate. Lord Atkin in R v Electricity Commissioners 119241 1 KB 171, 204-205, declared that prerogative writs would issue to "anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially". Indeed procedural fairness, a common law duty, implies that one would act fairly in decision making by the exercise of statutory and judicial powers which may affect an individual’s rights, interest and legitimate expectations.Even if so, all matters pending resolution under the previous legal regime were to be continued under WIBA and we have seen no evidence of denial of any right by that fact alone. Indeed, our courts and quasi-judicial tribunals have routinely applied the law in such a manner as to protect existing rights and therefore while we agree with the Appellate Court that a party has the legitimate expectation to have a dispute resolved under the invoked legal regime, we see nothing unconstitutional in WIBA being applied in a manner that is consistent with its provisions but taking into account the invoked legal regime.”

28. That said, upon consideration of the foregoing binding authorities and the record, it is apparent that at the time the suit was filed on 25. 04. 2013, the dispute pertaining to the validity of the relevant sections of WIBA was pending before the Court of Appeal, which appeal eventually succeeded in the manner already set out hereinabove. It is also apparent that upon a second appeal, the Supreme Court upheld the decision by the Court of Appeal. Both the Court of Appeal and the Supreme Court went a step further in addressing the doctrine of legitimate expectation and their respective reasonings have been set out above.

29. Going by the record, it is clear that at the time of delivery of the impugned ruling in the suit on 3. 12. 2020, both the Court of Appeal and the Supreme Court had rendered their respective verdicts on the question of validity of the challenged sections of WIBA, thus settling the position on the proper procedure for lodging a complaint under the Act. From a reading of the impugned ruling, it is apparent that the learned trial magistrate had familiarized himself with both decisions.

30. Suffice it to say that, from the court’s further reading of the impugned ruling, it is apparent that while the learned trial magistrate set out the reasoning both by the Court of Appeal and the Supreme Court, on the doctrine of legitimate expectation in respect of work injury related matters already pending before the courts upon enactment of WIBA, he proceeded to find that the Appellant ought to have followed the procedure set out under Section 52 of WIBA, which expresses that an aggrieved party ought to first lodge an objection with the Director and if dissatisfied with the reply thereto, he or she may then lodge an appeal to the Industrial Court (the Employment and Labour Relations Court).

31. It is imperative to restate at this stage that at the time the Appellant filed the suit, the High Court had declared the above-cited Section as well as the respective sections of WIBA inconsistent with the Constitution and therefore, null and void; notwithstanding the fact that the matter was at the time pending before the Court of Appeal, on appeal. It thus follows, in the court’s view, that the Appellant naturally had a legitimate expectation that his dispute would be determined through the judicial process invoked.

32. It is for the foregoing reason that upon the Supreme Court rendering its above-cited decision in the matter on 3. 12. 2019, the current Chief Justice; Martha Koome; subsequently issued Practice Directions vide the Kenya Gazette Notice Vol. CXXV—No. 99 and dated 28. 04. 2023, reaffirming the Supreme Court’s position and therefore clarifying the status of pending claims filed either before or after the enactment of WIBA and/or the Supreme Court judgment. For the avoidance of doubt, the Practice Directions stated as follows under paragraphs 6, 7 and 8: 6. (a)All claims with respect to compensation for work related injuries and diseases filed in various courts before the commencement of WIBA shall proceed to conclusion under the Workmen’s Compensation Act, Cap 236 (repealed).(b)All judgments and rulings relating to work related injuries claims pending before the Employment and Labour Relations Court and the Magistrates Court shall be delivered by the same court.

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,(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 conclusion before the said courts.(b)All pending judgments and rulings relating to compensation for work related injuries and diseases before the Employment and Labour Relations Court and the Magistrates’ Courts shall be delivered by the same court.

Claims Filed after the Supreme Court Decision 8. (a)All claims with respect to compensation for work related injuries and diseases shall commence before the Director of Occupational Safety and Health Services.(b)All appeals emanating from the decision of the Director of Occupational Safety and Health Services shall lie before the Employment and Labour Relations Court.(c)Such appeal shall be heard and determined through the appropriate appellate mechanism within the judicial hierarchy

33. Relating the foregoing Directions to the present matter, it follows that the Appellant’s suit would fall under the category listed under paragraph 7 of the Practice Directions, the same having been lodged after commencement of WIBA but before the Supreme Court judgment. Consequently, the Appellant was under the doctrine of legitimate expectation, entitled to have his claim proceed until its conclusion, before the court in which it had been filed.

34. In view of all the foregoing circumstances therefore and being bound by the Supreme Court decision which was replicated in the abovementioned Practice Directions, the court is convinced that the learned trial magistrate erred in determining that the Appellant’s failure to follow the procedure set out under WIBA for lodging a complaint was fatal to his claim. The court finds that the learned trial magistrate ought to have found, upon a careful interpretation of the Supreme Court’s decision on the subject, that the Appellant’s claim was competently before the Magistrates’ Courts, under the doctrine of legitimate expectation.

Determination 35. The appeal herein succeeds on merit and the same is hereby allowed. The ruling delivered by the trial court on 3. 12. 2020 in Milimani CMCC No. 2259 of 2013 is hereby set aside and is substituted with an order dismissing the preliminary objection dated 3. 03. 2020 with costs. The Appellant’s suit is therefore reinstated for hearing and disposal before any Magistrate of competent jurisdiction, other than Honourable E.M. Kagoni (PM). The Appellant shall have the costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MARCH, 2025HON. T. W. OUYAJUDGEFor Appellant……njorogeFor Respondent……no AppearanceCourt Assistant……jackline