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ELRCPartially AllowedAppeal from Nairobi CMCC No. 2192 of 2019· [2023] KEELRC 1080 (KLR)

Twiga Construction Company Limited v Osoro (Appeal E068 of 2020) [2023] KEELRC 1080 (KLR)

High Court of Kenya
27 April 2023
2,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a High Court appeal against a ruling by Honourable P. Muholi, Senior Resident Magistrate, delivered on 23rd September 2020 in Nairobi CMCC No. 2192 of 2019, in which the magistrate declined to uphold the defendant's preliminary objection that the trial court lacked jurisdiction over a work injury claim under the Work Injury Benefits Act 2007 as construed by the Supreme Court in Law Society of Kenya v The Attorney General & another (Petition No. 4 of 2019). Twiga Construction Company Limited appealed, seeking setting aside of the ruling, referral of the respondent's claim to the Director of Occupational Safety and Health Services, or striking out of the suit. The respondent submitted that his suit, filed on 29th March 2019, was lodged while sections 16 and 58 of WIBA stood declared unconstitutional by Ojwang' J., a declaration not stayed or set aside until the Court of Appeal's decision of 17th November 2017 and the Supreme Court's determination of 3rd December 2019, and that he therefore held a legitimate expectation to conclude his claim in court. Nzioki wa Makau J agreed with Radido J.'s exposition in West Kenya Sugar Co Ltd v Tito Lucheli Tangale that claims lodged between 22nd May 2008 and 3rd December 2019, underpinned by judge-declared law, were validly within the courts' jurisdiction. The appeal was dismissed in its core, but the Court, in light of the Supreme Court decision and the passage of time, referred the plaintiff's claim to the Director of Occupational Safety and Health for assessment and award. Each party bears their own costs of the motion in the appeal; the appellant bears the respondent's lower court costs.

Key legal issues

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01

Jurisdiction of the magistrate's court over a WIBA-era work injury claim filed on 29th March 2019

Holding

The magistrate had jurisdiction because at the time of filing, sections 16 and 58 of WIBA had been declared unconstitutional by the High Court and that declaration had not been stayed or set aside

Reasoning

The Court adopted Radido J.'s exposition in West Kenya Sugar Co Ltd v Tito Lucheli Tangale: a litigant may rely on judge-declared law until it is set aside or vacated. The High Court declaration of unconstitutionality stood from 2009 until the Court of Appeal reinstated the provisions on 17th November 2017 and the Supreme Court determined the matter on 3rd December 2019. The respondent's suit of 29th March 2019 was therefore lodged on the strength of valid judge-declared law.

p. 5
02

Applicability of legitimate expectation to the respondent's claim

Holding

The respondent, having filed suit while the unconstitutionality declaration stood, held a legitimate expectation that his case would be concluded under the judicial process he had invoked

Reasoning

The Court aligned itself with Radido J.'s Kisumu ELRC Appeal ruling that claimants who filed suits between 22nd May 2008 and 3rd December 2019 on the belief that judge-declared law was valid were entitled to assert legitimate expectation in having their claims heard to conclusion before the courts where lodged. The magistrate therefore did not err in applying that principle.

p. 5
03

Referral of the claim notwithstanding dismissal of the appeal

Holding

Although the appeal failed, the Court, in light of the Supreme Court decision and effluxion of time, referred the respondent's claim to the Director of Occupational Safety and Health for assessment and award

Reasoning

For the proper administration of justice and given the time elapsed, the Court exercised its discretion to refer the claim to the statutory forum for assessment and award, while simultaneously holding that the magistrate's ruling on jurisdiction was correct and declining to disturb it.

p. 5

Legal principles established

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  • Claims lodged with the courts between 22 May 2008 and 3 December 2019, underpinned by judge-declared law holding section 16 of WIBA unconstitutional, were validly within the courts' jurisdiction
  • Until set aside or vacated, judge-declared law is valid and citizens may order their affairs on the strength of it

Court orders

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  1. 1.Appeal dismissed; the Court declined to interfere with the decision of the Learned Magistrate
  2. 2.The Plaintiff's claim referred to the Director Occupational Safety and Health for an assessment and award per the provisions of the law
  3. 3.Each party to bear their own costs of the motion in the appeal
  4. 4.The Appellant to bear the Respondent's (Plaintiff's) costs in the lower court
  5. 5.Ruling to be availed to the Learned Magistrate for records
On appeal from
Chief Magistrate's Court, Nairobi
Nairobi CMCC No. 2192 of 2019
Jurisdiction invoked
Appellate jurisdiction over a ruling of the Chief Magistrate's Court under the Work Injury Benefits Act 2007 regime

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Twiga Construction Company Limited v Osoro (Appeal E068 of 2020) [2023] KEELRC 1080 (KLR)", Case Analysis (2023). Appeal from Nairobi CMCC No. 2192 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1080/eng@2023-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.