James Kariuki Ng'ang'a v Bhachu Industries Limited & Directorate of Occupational Health and Safety Services

1. THAT the Preliminary Objection as filed is incompetent, misconceived, bad in law and an abuse of the process of this Honourable Court. 2. THAT the Preliminary Objection does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, in that it does not raise a pure point of law but instead raises contested issues of fact which require evidentiary proof. 3. THAT the issue as to the place where the cause of action arose and/or the location of the 1 st Respondent’s business is a matter of fact which has neither been admitted nor proven and therefore cannot properly be raised as a preliminary objection. 4. THAT the 1st Respondent has failed to place before this Honourable Court any material evidence or particulars to demonstrate that its place of business is within Nairobi County or that the cause of action exclusively arose therein. 5. THAT the Honourable Court has jurisdiction under Article 162(2)(a) of the Constitution of Kenya, 2010 as read together with Section 12 of the Employment and Labour Relations Court Act to hear and determine disputes relating to employment and labour relations, including matters arising under the Work Injury Benefits Act. 6. THAT the jurisdiction of the Employment and Labour Relations Court is not limited by county boundaries, and this Honourable Court is properly seized of the matter. Page 2 of 12

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7. THAT the Applicant resides within Machakos County and has properly invoked the jurisdiction of this Honourable Court, and no prejudice whatsoever has been demonstrated by the 1st Respondent to warrant the objection. 8. THAT the Preliminary Objection is a mere technicality intended to expeditious delay, obstruct determination of and defeat the the Applicant’s application for adoption of the award. 9. THAT the 1st Respondent was duly served with the application dated 25th November, 2024 but failed and/or neglected to file any response thereto and is now improperly seeking to defeat the application through a belated Preliminary Objection. 10. THAT (Directorate the of award by Occupational the 2nd Safety Respondent and Health Services) in the sum of Kshs. 390,667/= has not been challenged, set aside, reviewed or appealed against within the statutory timelines provided under the Work Injury Benefits Act. 11. THAT in the absence of any appeal or objection, the said award remains valid, binding and enforceable, and this Honourable Court is properly moved to adopt the same as a judgment of the Court. 12. THAT the Preliminary Objection does not raise any point capable of disposing of the suit at a preliminary stage and ought to be dismissed with costs. Page 3 of 12

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13. THAT the 1st Respondent has failed to demonstrate any prejudice it stands to suffer if the matter proceeds before this Honourable Court. 14. THAT the Preliminary Objection is frivolous, vexatious and lacks merit and is calculated to delay the course of justice. 15. THAT it is in the interest of justice that the Preliminary Objection be dismissed and the Applicant’s application for adoption of the DOSH award be allowed to proceed on merit. 1st Respondent’s Submissions 3 On the competence of the preliminary objection, the 1 st Respondent relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where a preliminary objection was described as “a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.” 4 It was submitted that the objection satisfies this test because the relevant facts are not dependent on further evidence or factual interrogation. In particular, the Applicant’s own DOSH Form 1 and DOSH Form 4 marked identify the 1st Respondent’s address as Nairobi. 5 It further submitted that even assuming the Applicant’s case to be correct, the undisputed documents relied upon by the Applicant demonstrate that the proceedings have been instituted in the wrong territorial forum. Page 4 of 12

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6 On territorial jurisdiction, the 1st Respondent submitted that although the dispute arises from an employment relationship and a DOSH award, the Applicant has not demonstrated any nexus between the cause of action and Machakos County. 7 The 1st Respondent submitted that there was no evidence that the employment was undertaken in Machakos, that the alleged accident occurred there, that the cause of action arose there, or that the 1st Respondent carries on business there. 8 Additionally, the 1st Respondent submitted thatApplicant’s own statutory documents placed the 1st Respondent’s address and the relevant employment dispute in Nairobi. Consequently, the filing of the matter in Machakos was characterized established as an territorial improper departure from the principles and, the 1 st in Respondent’s view, amounted to forum shopping. 9 The 1st Respondent further contended that the Applicant’s reliance on the constitutional and national jurisdiction of the Employment misplaced. While and Labour acknowledging Relations that Court the was Court is established under Article 162(2)(a) of the Constitution, it was submitted that constitutional jurisdiction does not dispense with the requirement for proceedings to be instituted at the appropriate Court station having regard to the territorial nexus of the dispute. 10 It argued that allowing litigants to institute proceedings at any Court station irrespective of where the cause of action Page 5 of 12

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arose would undermine the orderly administration of justice and encourage forum shopping. 11 It was further submitted that the Applicant’s residence in Machakos, without more, could not confer territorial jurisdiction upon the Court. 12 The 1st Respondent also argued that the Applicant was bound by the contents of his own pleadings and documentary exhibits and could not approbate and reprobate by relying on documents identifying Nairobi as the 1st Respondent’s address while simultaneously contending that the territorial question remained disputed. 13 It submitted that the documents were official statutory forms generated in the course of the Applicant’s proceedings before the Directorate of Occupational Safety and Health Services and therefore constituted compelling evidence of the territorial connection of the dispute. In its view, the Grounds of Opposition could not displace the position disclosed by the Applicant’s own annexures. 14 On the effect of want of jurisdiction, the 1 st Respondent relied on the decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, emphasizing the principle that jurisdiction is fundamental and that, where it is absent, a court must down its tools. It relied on the statement by Nyarangi JA that, “Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.” Page 6 of 12

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15 The 1st Respondent consequently submitted that territorial jurisdiction was not a mere procedural technicality capable of being cured by Article 159 of the Constitution, but a threshold issue which had to be established before the Court could proceed to consider the merits. Accordingly, the 1st Respondent maintained that Nairobi was the proper forum because it was the place where it carried on business and where the employment relationship and the relevant DOSH documentation were connected. 16 It is the 1st Respondent’s submission that the Applicant failed to establish any legal or factual basis for invoking the territorial jurisdiction of the Machakos Court and urged the Court to uphold the preliminary objection, strike out the application dated 25th November 2024 for want of territorial jurisdiction, and award costs to the 1 st Respondent. Applicant’s Submissions 17 The Applicant submitted that the 1st Respondent’s preliminary objection is misconceived because this Court, as the Employment and Labour Relations Court (ELRC), possesses nationwide jurisdiction over employment and labour relations disputes. 18 It was argued that Article 162(2)(a) of the Constitution establishes the ELRC as a court of equal status with the High Court, while Section 4 of the Employment and Labour Relations Court Act establishes it as a single court with jurisdiction throughout the Page 7 of 12 Republic. The Applicant

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contended that the establishment of different ELRC stations, including administrative Machakos arrangement and Nairobi, intended to is an decentralise access to justice and does not confer separate or restricted territorial jurisdiction upon individual stations. 19 The Applicant submitted that the 1 st Respondent conflated the Court’s constitutional and subject-matter jurisdiction with the administrative allocation of matters to particular Court stations. 20 It was submitted that a Judge sitting at Machakos does not lose the Court’s jurisdiction merely because a dispute has some connection with Nairobi. In that regard, the Applicant distinguished the principle in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, contending that the present Court is vested with jurisdiction over the subject matter and that the issue raised by the 1 st Respondent does not amount to a want of jurisdiction contemplated in that decision. 21 In support of the Court’s jurisdiction in DOSH award matters, the Applicant relied on Charles v Cheto [2025] KECA 784 (KLR), which cited Samson Chweya Mwendabole v Protective Custody Limited [2021] KEELRC 1809 (KLR). The Applicant relied on the recognition in these decisions that, although there is a procedural lacuna concerning enforcement of awards made by the Director under the Work Injury Benefits Act (WIBA), the ELRC, by virtue of Article 162(2)(a) of the Constitution and Section 12 of the ELRC Act, possesses Page 8 of 12

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inherent jurisdiction to adopt the Director’s award as a judgment for purposes of execution. The Applicant emphasized the distinction drawn by the Court between such inherent jurisdiction and the appellate jurisdiction conferred under Section 52(2) of WIBA. 22 The Applicant further submitted that the 1st Respondent could not use the preliminary objection to invite the Court to undertake a fact-finding exercise on the validity or territorial basis of the DOSH proceedings. 23 It was argued that, if the 1 st Respondent considered the DOSH award erroneous or otherwise challengeable, WIBA prescribed the appropriate procedure for doing so, including lodging an objection within the statutory period. 24 It is the Applicant’s submission that the 1 st Respondent failed to object within 60 days of the award and did not instituted judicial review proceedings. Therefore, the preliminary objection is being used to circumvent the statutory mechanism for challenging the award and amounted to an abuse of the Court process and an attempt to delay the Applicant from enjoying the fruits of the award. The Applicant invoked the principle that “justice aids the vigilant, not the indolent.” 25 On the alleged absence of a territorial nexus with Machakos, the Applicant disputed the 1 st Respondent’s assertion that the dispute was connected exclusively to Nairobi. It submitted that the DOSH proceedings culminated in a statutory award rendered in Athi River, which is situated within Machakos County. Page 9 of 12

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26 It was submitted that since the present application arose directly from that statutory process and sought judicial intervention in relation to the DOSH award, the Applicant argued that the place where the award was rendered provided a sufficient factual and territorial connection to the Machakos Court station. 27 The Applicant relied on Walala v Guardian Coach Limited; Directorate of Occupational Safety and Health Services (Respondent) [2025] KEELRC 792 (KLR), where the Court found no material demonstrating that DOSH had failed to discharge its statutory obligations under WIBA and recognized that WIBA establishes a no-fault system for compensation for occupational injuries, diseases and death. 28 Against this background, the Applicant argued that the 1 st Respondent neither challenged the DOSH assessment within the prescribed period nor placed evidence before the Court demonstrating any failure by DOSH to perform its statutory functions. The Applicant consequently maintained that the assessment and resulting award were properly undertaken. 29 The Applicant also addressed the 1st Respondent’s reliance on DOSH Forms 1 and 4, which bear the 1 st Respondent’s Nairobi address. It submitted that the employer’s registered or postal address could not, by itself, determine the exclusive territorial forum for every dispute arising from the employment relationship. Page 10 of 12

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30 The Applicant argued that greater significance should be attached to the location of the statutory process giving rise to the present application, namely Athi River in Machakos County. On that basis, he characterized the filing of the application in Machakos not as forum shopping, but as a rational exercise of access to justice and administrative proximity. 31 In support of this position, the Applicant invoked the constitutional objective of access to justice under Article 159 of the Constitution and Section 29 of the ELRC Act, which he submitted requires progressive and reasonable access to judicial services. The Applicant submitted that requiring an injured employee who has obtained a DOSH award in a regional county to litigate exclusively at the employer’s head-office location undermines the decentralization of judicial services and unnecessarily impede access to justice. 32 It is the Applicant’s submission that the preliminary objection did not satisfy the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because, contrary to the 1st Respondent’s contention, determination of the objection required consideration of contested geographical facts, including the significance of the place where the DOSH award was rendered. 33 The Applicant maintained that the 1st Respondent selectively relied on the employer’s Nairobi address while disregarding the Athi River/Machakos nexus arising from Page 11 of 12

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the DOSH proceedings. The Applicant therefore urged the Court to find that it was properly seized of the matter, dismiss the preliminary objection in its entirety, and award costs to the Applicant. 34 I have examined all the averments and submissions of the parties herein. The preliminary objection is raised by the respondents on issue of the courts geographical jurisdiction to hear and determine this application. 35 Respectively, the jurisdiction of this court is donated by the constitution under article 162 of the constitution and is not restricted to geographical boundaries. The nature of the application pending before court would also be determined in the interest of justice by not shuttling to another court the same which may lead to delay on hearing of the same. I find the preliminary objection is therefore not merited and is thus dismissed. Costs in the application. Dated, Signed and Delivered virtually at Machakos this 25th Day of September 2026. HELLEN WASILWA JUDGE Page 12 of 12

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