Shalimar Flowers Kenya Limited & 1 other v Justus Idewa & 1 other

the 2nd appellant negligently drove, controlled or managed it causing it to lose control and cause an accident. 3. That as a result of the aforesaid, the respondents sustained the following injuries: a. Blunt injury to the anterior chest wall leading to soft tissue injuries. b. Blunt injury to the left shoulder joint leading to soft tissue injuries. c. Blunt injury to the left thigh leading to soft tissue injuries. d. Blunt injury to the right leg leading to soft tissue injuries. e. Blunt injury to the lower chin leading to soft tissue injuries. 4. The respondents blame the 2nd appellant for causing the accident. The particulars of negligence are stated to be that, the 2nd appellant drove a defect vehicle, at an excessive speed, failed to keep a proper lookout for other road users, failed to swerve, brake or maintain proper control of the vehicle so as to avoid the accident. The respondents relied on the doctrine of res ipsa loquitor. 5. That the 1st appellant is vicariously liable for the acts of the 2nd appellant who is its agent and/or servant. 6. By a statement of defence dated 29th August 2022, the appellants denied the respondent’s claim. Of great significance is the averments at paragraph 6 of the defence that, the respondent had had lodged a WIBA claim before the Directorate of Occupational Health and Safety Service and therefore the proceedings before the trial court were “wrong”. 7. The appellants filed a preliminary objection dated 29th August 2022 based on the following grounds verbatim reproduced: a. That this Court has no jurisdiction to hear and determine this matter. b. That in a judgment dated 4th March, 2009 the High Court in Petition Number 185 OF 2008 Law Society of Kenya vs Attorney General & Another allowed Magistrate's Courts to hear and determine work related injury claims. c. That the above High Court judgment was overturned on 17th November 2017 by the Court of Appeal in Civil Appeal No. 133 of 2011 Attorney General vs. Law Society of Kenya & Another [2017] eKLR. d. That the Supreme Court in Petition Number 4 of 2019 Law Society of Kenya vs Attorney General & Another upheld the aforesaid Court of Appeal decision and further held that under the principle of legitimate expectation matters already filed before Magistrate's Courts prior to the enactment of the Work Injury Benefits Act (hereafter WIBA 2007) should continue being heard, this is under paragraphs 84 to 88 of the said decision. e. That the matters that are to be heard to their completion by Magistrate's Courts under the principle of legitimate expectation are matters filed before the enactment and commencement of the Work Injury Benefits Act which commenced on 2nd June, 2008, a position already clarified by the Chief Justice's Circular/Directive dated 15th September 2020 on WIBA matters. f. That as such, a matter like the one before Court, dated and filed on 17th August 2022 is a matter filed against clear pronouncements by the Court of Appeal and the Supreme Court and in contravention of Sections 10, 16, 21, 22 (1), 23 (1), 34 (1), 51(1) and 53 (2) (d) of WlBA 2007. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19655/eng@2025-11-05 2

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g. That as a result, the same is for striking out ex debito justitiae. 8. The respondent filed a replying affidavit dated 28th November 2022 in response to the preliminary objection. He argued that, the preliminary objection has no merit, is an abuse of the process of court, totally incompetent, a non-starter and absolutely unsustainable. Further that it is frivolous, vexatious and brought in bad faith to buy time and act as a delaying tactics. Finally, that, the preliminary objection is an afterthought and overtaken by events. 9. By a statement of reply to the defence dated 28th November 2022, the respondent averred that the defence consisted of mere denial and reiterated the averments in the plaint. 10. By a ruling dated 2nd June 2023 the trial court found that the preliminary objection had no merit and dismissed it on the ground that this is a pure traffic accident case and is not work related. 11. However, the appellants are aggrieved and appeals against the trial court’s decision based on the following grounds: a. That the learned trial Magistrate erred in law and in fact in dismissing the appellant's Notice of Preliminary Objection dated 29th August, 2022 challenging the court's jurisdiction to handle the work-related injury claim. b. That the Learned Trial Magistrate erred in law and in fact in disregarding the finding by the Supreme Court in Petition No. 4 of 2019 Law Society of Kenya vs Attomey Genera & Another declaring that Magistrates court have no jurisdiction to adjudicate over work injury claims arising after the enactment of the Work Injury Benefit Act 2007. c. That the learned trial Magistrate erred in law and in fact in finding that the court had jurisdiction to handle Work Injury Benefit claims contrary to the express provisions of the Work Injury Benefit Act. d. That the learned trial Magistrate erred in Law and in fact in applying the simplistic and pedantic reasoning that the accident in question occurred outside the farm/place of work and thus was a road traffic accident-related claim and not a work injury claim. e. That the learned trial Magistrate erred in Law and in fact in failing to appreciate, respect and uphold the hierarchy of courts and the principle of precedents by disregarding the finding by the apex court in the country on the issue of jurisdiction of Magistrates court to handle work injury benefit claims. f. That the learned trial Magistrate erred in law and in fact in failing to appreciate, interrogate the provisions of the Work Injury Benefits Act. 12. The appeal herein was canvassed through filing of submissions. The appellants filed submission dated 28th June 2024, and argued that the matter herein is a claim for compensation resulting from work related. The decisions by the Supreme Court of Kenya in Petition No. 4 of 2019 Law Society of Kenya vs Attorney General & Another which upheld the decision of the Court of Appeal in Civil Appeal No. 133 of 2011 Attorney General vs Law Society of Kenya & Another was cited. That it stated that section 16 as read with section 23 of the Work Injury Benefit Act confers to the Director of Occupational Safety and Health Services powers to adjudicate any claims of compensation arising from injuries or death in the workplace, and expressly bars institution of court proceedings. 13. Furthermore, that the court is bound by the principle of stare decisis. That Article 163(7) of the Constitution of Kenya, 2010, states that all courts other than the Supreme Court are bound by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19655/eng@2025-11-05 3

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decision of the Supreme Court. The appellants relied on the case of Mohammed Abushiri Mukulu vs Minister of Lands and Settlement & 6 others [2015] eKLR where the Court of Appeal quoted the decision of the Supreme Court in Jasbir Singh Rai & 3 others vs Tarlochan Singh & 4 others [2013] eKLR where the court under that the doctrine of stare decisis hold the decision of a higher court binds all lower courts in similar cases unless the decision is distinguished or overruled. 14. The appellants further placed reliance on the case of Petition No. 4 of 2019 Law Society of Kenya vs Attorney General & Another (supra) where the Supreme Court took note of the decision of the High Court in Juma Nyamawi Ndungo & 5 others vs Attorney General; Mombasa Law Society (Interested Party) [2019] eKLR and faulted the learned Judge for making a determination in the case, where the matters before him were for consideration by the Apex court. That it was held the learned Judge ought to have acknowledged the hierarchy of courts and put off his determination until the Supreme Court rendered itself as its decision. 15. The appellants submitted that the Supreme Court of Kenya having made a finding that all actions related to work injuries lies with the Director of Occupational Safety and Health Services, the trial court was bound by the decision and could not deviate from it. 16. Furthermore, the trial court was bound by the directive issued in a circular dated 15th September 2020 by the Retired Hon. Chief Justice David Maraga which clearly stated that, the Magistrate court has no jurisdiction to entertain work related claim in the first instant. 17. The appellants argued that the Magistrate’s court can only hear work related accident matters filed before enactment of the WIBA as held by the Supreme Court Petition No. 4 of 2019 Law Society of Kenya vs Attorney General & Another (supra) based on the claimant’s legitimate expectation. 18. However, the respondent vide submissions dated 8th October 2024, cited the cases of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and Oraro vs Mbaja (2005) eKLR which define a preliminary objection as one that consists of a pure point of law and must not contain facts that require to be ascertained. 19. The respondent argued that, the trial court could not determine the issue of whether the suit constituted a WIBA matter without the courts hearing the facts. That the injuries he sustained were not work related but were the result of a road traffic accident that occurred while he was on board the 1st appellant’s motor vehicle far away from his place of work. 20. That, the issue of whether the suit relates to work matter cannot be determined in a summarily manner but must be resolved judicially. He relied on the case of Charles Onchari Ogoti vs Safaricom Limited & Another (2020) eKLR where the High Court stated that there in determining a preliminary objection courts ought to be cautious that there are disputes better off being resolved judicially than summarily. 21. The respondent argued that the appellants’ preliminary objection not having been based on a pure point of law and the matter requiring judicially resolution through the interrogation of facts, the appeal should be dismissed with costs. 22. That this court in Andukan v Bilashaka Flowers Limited & another [2025] KEHC 9344 (KLR) stated that: “ 26. Be that as it were, this matter was rather straight forward on only one issue as to whether the court had the jurisdiction to hear and determine the plaintiff’s suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19655/eng@2025-11-05 4

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27. In my considered opinion the guiding factor was the pleading. The trial court needed to look at the pleading, basically the plaint. I realize that the trial court relied purely on the issue of the relationships between the parties and arrived at the conclusion that it had no jurisdiction. However, a reading of the plaint indicates that the plaintiff's claim is based on both the tort of negligence and contract as evidenced by the content of paragraphs 5 to 11 of the plaint where the plaintiff pleads to particulars of negligence and breach of contract. 28. ... Furthermore, the only way the nature of the claim could be fully appreciated was after hearing the evidence in support thereof.” 23. To revert back to this matter, the pleadings indicates that the subject accident occurred while the spodnent was a lawful passenger on board motor vehicle registration No. KAX 757L along-NaivashaNorth Lake Road. To resolve whether this is a work related matter or not, the circumstances under which the accident occurred, as to what the respondent was doing, whether it was work related or not be interrogated. The interrogation will involve production of evidence hence is a matter of facts. 24. The arguments advanced herein can only be supported by evidence. As stated in the afore case of Andukan, there is need to hear the case and then determine whether it is a matter to be entertained by the court or not, and if the court finds it has no jurisdiction it will state as such. Therefore I shall not delve into the merits of the arguments advanced herein and order that the matter proceeds to full hearing. 25. I therefore uphold the finding of the trial court and dismiss the appeal with costs. 26. It is so ordered. DATED, DELIVERED AND SIGNED THIS 5TH DAY OF NOVEMBER 2025. GRACE L. NZIOKA JUDGE In the presence of: Mr. Kairu H/B for Mr. Karanja for the appellants N/A for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19655/eng@2025-11-05 5

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