Maricus Oluoch Miyaga & 1 other v Hakika Transport Services Limited

3. Being dissatisfied, the Appellants appealed against the ruling and order through the Memorandum of Appeal dated 19/07/2022 on the following grounds: a. That the Learned Trial Magistrate erred both in law and fact when he dismissed the Plaintiffs’ suit on the ground that the cause of action falls under the Work Injury Benefits Act when the Plaint, statement and all supporting documents showed that the suit was based on the Common Law tort of negligence as against the motor vehicle owner. b. That the Learned Trial Magistrate erred in law and in fact when he misdirected himself on the law and principles related to Common Law tort of negligence and the Plaintiff’s right to elect to file suit under common law instead of under statutory breach of the duty of care thereby arriving as a wrong decision. c. That the Learned Trial Magistrate erred in law and fact in failing to find that no substantive preliminary objection had been raised in the pleadings to warrant the drastic orders dismissing the Plaintiff’s suit. d. That the Learned Trial Magistrate erred in law and in fact when he dismissed the Plaintiff’s suit without appreciating the pleadings and evidence that was placed before him. e. That the Learned Trial Magistrate misdirected himself when he failed to consider the Plaintiff’s pleadings and cause of action as pleaded thereby arriving at a wrong decision. f. That the Learned Trial Magistrate erred in law and in fact when he dismissed the Plaintiff’s suit without any sufficient reasons. 4. The Appellants prayed for orders that the appeal be allowed with costs, that the ruling and order of the court be set aside and the matter referred back for hearing and determination before a different magistrate, and that the Respondent do bear costs of the appeal. 5. The appeal was canvassed by way of written submissions. The Appellants in their submissions dated 02/05/2025 argued that the claim before the trial court was a claim for negligence in tort under Common Law. That it is trite law that alternative claims may be allowed where an employee is injured by a vehicle while at work and both causes may be pleaded in the alternative, allowing the court to award one of the claims. 6. The Appellants relied inter alia on the holding in Attorney General v Law Society of Kenya & another (2017) eKLR. That the Defendant in the trial court did not demonstrate compensation of the deceased under WIBA which allowed the Plaintiffs to pursue the claim of negligence under common law. 7. The Appellants submitted that whereas Section 16 and 23 (1) of the Work Injury Benefits Act confer jurisdiction for work injury claims upon the Director of Occupational Health Services, the claims are brought under the Act for breach of statutory duty. That the director of Occupational Health Services has no jurisdiction to deal with claims under common law duty of care where the employee files suit under the tort of negligence. 8. That WIBA is limited to claims under statute and did not oust jurisdiction of the court to determine claims under common law tort of negligence, particularly where an employee is injured outside the workplace by the employer’s motor vehicle and the police are involved. 9. The Respondent in its submissions dated 09/06/2025 argued that the deceased was fatally injured in the course of his employment but paragraph 6 of the Plaint has been framed to imply that the deceased https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4357/eng@2026-02-26 2

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and the Defendant were unknown to each other while paragraph 8 has not stated where the deceased was engaged as a turn man earning a monthly income of Kshs. 10,000. 10. That the Plaintiffs’ witnesses, the deceased’s father and Mr. Joseph Aroko Doko, in their statements admitted that the deceased was the Defendant’s employee. That the suit therefore falls under WIBA as there was a master and servant relationship. 11. The Respondent submitted that the Plaintiffs decided to file the suit under the pretext that it was a tort of negligence and that the limitation period of 3 years for such suits has lapsed. That although the Appellants allude to the fact that they obtained leave to file suit out of time, the application and the reasons therein for the delay do not form part of the lower court proceedings nor the Record of Appeal. That there is also no proof that such leave was indeed granted. 12. The Respondent stated that the Plaint was filed on 03/08/2021, more than 6 years after the accident but there is no proof that valid reasons were given to merit extension of time. That if the suit had been filed within 3 years, the same would have been caught under WIBA but filing it out of time, the Plaintiffs were under the impression that they had been given a new lease of life as a claim in tort for negligence. According to the Respondent, the Appellants have not come to court with clean hands. 13. The Appellants filed further submissions dated 18/06/2025 in rebuttal and stated that paragraph 4 of the Plaint dated 26/07/2021 was clear that the Plaintiffs had obtained leave to file suit out of time in Mombasa Chief Magistrates Misc. Application No. E147 of 2020. That the trial court did not address the issue of limitation in its decision, which issue was not canvassed by the parties and cannot therefore form part of the appeal herein. 14. That the issue of whether the deceased was assisting motor vehicle registration No. KTCB 806L or KVF 012/ZA 3680 was also not canvassed before the trial court and as such the issue cannot be brought herein. Analysis 15. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … 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 …” 16. I have considered the Record of Appeal and submissions by the parties. The issues for determination are: a. Whether the trial court erred in declining jurisdiction on grounds that the claim fell under WIBA b. Whether the Appellants were entitled to pursue a common law negligence claim c. Whether limitation was properly before the trial court d. What orders on costs should issue https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4357/eng@2026-02-26 3

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17. On jurisdiction of WIBA, the Work Injury Benefits Act provides a statutory framework for compensation of employees injured in the course of employment. Section 16 of the Act provides that: “ No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.” 18. The constitutionality and interpretation of this provision were settled by the Supreme Court in Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) where the Court upheld the constitutionality of WIBA and affirmed that claims for compensation for work injuries fall within the jurisdiction of the Director of Occupational Safety and Health Services in the first instance. However, the Supreme Court clarified that WIBA does not abolish judicial oversight, and that appeals lie to the Employment and Labour Relations Court after the Director’s determination. 19. It is not in dispute that the deceased was an employee of the Respondent. It is also not in dispute that the deceased sustained fatal injuries while in the cause of his duty. It is also not in dispute that where an employee suffers injury in the course of employment, WIBA provides the primary remedy against his employer. 20. However, there are claims on tort of negligence where the employer is alleged to owe a duty of care towards the employee, and the employer breached that duty thus causing injury. The tort of negligence is under the Common Law. Negligence must be proved and damages both general and special awarded. The courts therefore are clothed with jurisdiction to deal with matter where tort of negligence is pleaded. Paragraph 7 of the Plaint pleads negligence on the part of the Respondent. Particulars of negligence were listed. The Appellants sought General and Special damages. I find that the suit was rightly filed before the Magistrate’s Court. 21. A suit under tort of negligence ought to be filed within 3 years. The Appellant submitted that they had sought leave to file suit out of time in Mombasa Chief Magistrate Misc. Application No. E147 of 2020 and leave granted. The Respondent raised limitation in submissions on appeal as the same was not pleaded in the Statement of Defence. 22. The trial court did not determine limitation. The issue was neither canvassed nor determined. An appellate court cannot determine issues not pronounced upon by the trial court unless they arise on pure law from the record. The question whether leave to file suit out of time was granted is a factual issue requiring evidence and cannot be resolved at this stage. This court therefore finds that limitation does not form part of this appeal. 23. The suit being a tort of negligence under the Common Law, the court had jurisdiction to hear and determine the matter. The suit is hereby reinstated and the same be placed before the Chief Magistrate for reallocation and retrial. Each party is to bear its own costs. Determination 24. Accordingly, this court makes the following orders: a. The appeal has merits and the order dismissing the suit is hereby set aside and substituted with an order of this court reinstating the suit. b. The matter be placed before the Chief Magistrate’s Court for reallocation and retrial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4357/eng@2026-02-26 4

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c. Each party shall bear their own costs. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 26TH DAY OF FEBRUARY, 2026 ............................. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Ms. Takah Advocate h/b for Mr. Mutubia Advocate for the Appellants Mr. Shikely Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4357/eng@2026-02-26 5

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