Eugenia Muthanje Njue v Jumbo Nuts Limited & 1 other

She had been pursuing treatment for the injury which treatment will continue into the unforeseeable future. The 2nd defendant was sued as the 1st defendant’s insurer. Parties’ Submissions 3. The preliminary objection was canvassed by way of written submissions. 4. The 2nd defendant/objector submitted that the plaintiff is employed by the 1st defendant, thus there is an employment relationship between them. That the suit herein ought to have been filed before the Employment and Labour Relations Court against the 1st defendant. It relied on the case of Ikua v Kilifi Plantations (2014) Limited [2024] KEELC 13434 (KLR) and Order 2 Rule 15 of the Civil Procedure Rules which empowers a court to strike out proceedings where no reasonable cause of action has been disclosed. It also relied on sections 16,23 and 52 of the Work Injury Benefits Act and argued that the suit ought to have been filed before the Employment and Labour Relations Court. 5. The plaintiff submitted that the 2nd defendant/objector had been rightly sued given that there is a contractual relationship between it and the 1st defendant. That the 2nd defendant investigated the plaintiff’s claim and reported its findings to the 1st defendant. Issue for Determination 6. The only issue for determination is whether this Court has jurisdiction to determine the suit and if the preliminary objection has merit. Analysis and Determination 7. The merit or otherwise of a preliminary objection is determined by considering the nature of issues raised therein. It is trite that a preliminary objection is raised based purely on legal issues. Additionally, the determination of those legal issues should have the overall effect of determining the primary suit if the preliminary objection succeeds. 8. This was the position enunciated in the celebrated case of Mukisa Biscuits Manufacturing Company Ltd v West End Distributors [1969] EA 696 where the Court of Appeal held thus: “ …So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises out of clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit….A preliminary objection is in the nature of a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.” 9. In this case, the 2nd defendant has challenged its joinder in the suit and the jurisdiction of the court to determine it. From a reading of the plaint, the plaintiff stated that she is an employee of the 1st defendant who is insured by the 2nd defendant. She sustained an injury while at work and so she is claiming for injuries sustained for work injury benefits under the Work Injury Benefit Act. 10. According to its pre-amble, the Work Injury Benefits Act Cap 236 was enacted to provide for compensation to employees for work related injuries contracted in the course of their employment. Section 3 applies the Act to all employees. Sections 4 and 5 define employer and employee. Section 10 grants rights to compensation for employees under specified work-related circumstances. Clearly, the claimant’s claim herein is strictly within the context of the employer-employee relationship. 11. Article 162(2)(a) of the Constitution establishes the Employment and Labour Relations Court whose jurisdiction is laid down under section 12 of the Employment and Labour Relations Court Act. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11253/eng@2025-07-30 2

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plaintiff’s claim in the plaint should be determined by that court since the wide jurisdiction of the High Court excludes matters relating to employment and labour relations as provided under Article 165(5) (b) of the Constitution which states: “The High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).” 12. The question of whether or not the 2nd defendant was rightfully joined as a party to the suit cannot be determined by this court because it lacks jurisdiction to do so. Disposition 13. Inevitably, the preliminary objection has merit and must succeed. The plaint dated 25th July 2024 has been filed in the wrong Court and is hereby struck out, as the High Court lacks jurisdiction to determine the dispute. 14. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 30TH DAY OF JULY, 2025. .............................. R. MWONGO JUDGE Delivered in the presence of: Muchangi G for Plaintiff Ms. Nyanjiru holding brief for Opondo for 2nd Defendant Ms. Migwi for 1st Defendant Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11253/eng@2025-07-30 3

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