Euticus Ndei Gaita (Suing as the father and next friend of James Githinji Ndei) v Peter Maingi

KER262/2026 s claim having been filed contrary to the aforementioned statutory provisions and practice directions. 3. This Court lacks the requisite geographical jurisdiction to hear and determine this suit as required by Section 15 of the Civil Procedure Act (Cap. 21 Laws of Kenya) as both parties are resident in Muranga County. 4. The suit is fatally defective, bad in law and an abuse of the court process and t herefore the same should be struck out with costs to the Defendant. [4] In its impugned ruling, the trial court upheld the Preliminary Objection and struck out the suit with costs. The Appeal [5] On appeal, the Appellant filed his memorandum of appeal dated 21/11/2023 raising 4 grounds as follows: 1. The learned Senior Resident Magistrate erred in law and fact by Ruling that th e suit in the lower court was filed in the wrong forum by virtue of section 16, 2 3 and 53 of the Work Injury Benefits Acts 2007 while the converse is true. 2. The learned Senior Resident Magistrate erred in law and fact by failing to find that the dispute herein had been referred to the Director of occupational safet y and Health services who declined to entertain it and such refusal could not b e appealed in the Employment and Labour relations court as there was no aw ard and/or dismissal of the claim and therefore the learned senior resident arr ived at an erroneous decision. 3. The learned Senior Resident Magistrate erred in law and fact in finding that s he had no jurisdiction to hear the suit filed in the lower court while the conver se is true. 4. The learned Senior Resident Magistrate erred in law and fact by failing to app reciate that the suit filed in the lower court was based on the tort of negligence and therefore the Director of occupational safety and health services did not h ave the requisite jurisdiction and/or mandate to determine the suit. Duty of the court [6] This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive 2

page 2 of 8

KER262/2026 at its own independent conclusions, but always remembering that, the trial court had t he advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others [1968] E.A. 123). Submissions on Appeal [7] The Appellant cites Selle v Associated Motor Boat Co. [1968] EA 123, on the duty of the first appellate court. He faults the trial court for failing to find that the dispute had been referred to the Director of Occupational Safety and Health Services who decline d to entertain it, and such refusal could not be appealed against in the Employment an d Labour Relations Court as there was no award and/or dismissal therefrom. He urges that by the time he filed his case in January 2023, the High Court judgment of 2009 w as applicable which had rendered the provisions of WIBA unconstitutional, and prays for the appeal to be allowed. [8] The Respondent cites Mukhisa Biscuit Manufacturing Co. Ltd v West End Distribut ors [1969] EA 696, In the Matter of Interim Independent Electoral Commission [20 11] eKLR and Oraro v Mbaja (2005) eKLR on the well established principles of preli minary objections. He urges that the Appellant ought to have reported the alleged inci dent to the Director of Occupational Safety and Health Services in the first instance pr ior to instituting the suit before the trial Court, and cites Law Society of Kenya v Attor ney General & another [2019] eKLR. Analysis and Determination [9] From the grounds of appeal, the singular issue for determination is whether the trial c ourt was divested of jurisdiction to hear and determine the suit. [10] Section 16 as read with Section 23 of the Work Injury Benefits Act confers the Director of Occupational Safety and Health Services with jurisdiction to adjudicate up on any claims of compensation arising from injuries or death in the workplace, and ex pressly bars institution of court proceedings. [11] Section 16 of the Work Injury Benefits Act provides that; “No action shall lie by an employee or any dependant of an employee for the recovery of damages in res pect 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 resp ect of such disablement or death.” 3

page 3 of 8

KER262/2026 [12] Section 23 of the Work Injury Benefits Act provides that: “(1) After having received notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are neces sary to decide upon any claim or liability in accordance with this Act. (2) An inquir y made under subsection (1) may be conducted concurrently with any other investig ation. (3) An employer or employee shall, at the request of the Director, furnish suc h further particulars regarding the accident as the Director may require. (4) A pers on who fails to comply with the provisions of subsection (3) commits an offence.” [13] Section 26 of the Work Injury Benefits Act provides that, “A claim for compe nsation in accordance with this Act shall be lodged by or on behalf of the claimant i n the prescribed manner within twelve months after the date of the accident or, in t he case of death, within twelve months after the date of death. (2) If a claim for com pensation is not lodged in accordance with subsection (1), the claim for compensati on may not be considered under this Act, except where the accident concerned has been reported in accordance with section 21. (3) If an employer fails to report an ac cident or to provide information requested by the Director as specified in the reques t, the Director may—(a) conduct an investigation and recover the cost of the investi gation from the employer as a debt due from the employer; or (b) levy a penalty on t he employer. (4) An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim. (5) The Director shall, within thirty days of receipt of the money claimed under subsection (1), pay the money to the employee who made the claim or his dependants. (6) An employer or an insurer who fails to pay the compen sation claimed under this subsection commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment fo r a term not exceeding one year or to both.” [14] There is no doubt that the Appellant’s claim originated from a work related inj ury. The Appellant pleaded at paragraphs 3 and 4 of the plaint as follows: “The plaintiff avers that the defendant contracted JAMES GITHINJI NDEI to und ertake building works in Kerugoya. The plaintiff further avers that in the course of employment by the defendant in Kerugoya where he was injured on 5/12/2020 to th e extent of being paralyzed solely due to the negligence of the defendant and the sai d victim suffered loss and damage.” 4

page 4 of 8

KER262/2026 [15] In Law Society of Kenya v Attorney General & another [2019] KESC 16 (KL R), the Supreme Court rendered thus; “Furthermore, this court should consider the Constitution 2010’s provisions to help deduce whether or not the impugned provisions, when read alongsid e the purpose of WIBA would assist in bringing clarity and justice to the issu es in contest. In doing so, a plain reading of section 16 of the Act would reve al that its intention is not to limit access to courts but to create a statutory m echanism where any claim by an employee under the Act is subjected, initial ly, to a process of dispute resolution starting with an investigation and awar d by the Director aforesaid and thereafter, under section 52 an appeal mech anism to the then Industrial Court. As we previously stated in Petition No 33 of 2018, Sammy Ndungu Waity v IEBC and 3 others [2019] eKLR; “Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can la wfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitut ional provision inoperable, a territory into which no judicial tribunal, howev er daring, would dare to fly.” We reiterate the above holding and in the present context therefore we furth er find that Section 16 cannot be read in isolation so as to create the impress ion that it curtails the right to immediately access the courts, because by look ing at the intention of section 16, the purpose it fulfils is apparent. That pur pose is revealed in section 23 which calls for initial resolution of dispute via the Director and this can be deemed as an alternative dispute resolution mec hanism. But what if one is still aggrieved by the decision of the Director? Th e answer to that question lies in section 52 of the Act which allows aggrieved parties to seek redress in a court process. In the circumstances, access to just ice cannot be said to have been denied. 63.Having so held, it is evident that by granting the Director authority to ma ke inquiries that are necessary to decide upon any claim or liability in accor dance with WIBA, the jurisdiction of the High Court to deal with constitutio nal questions and violations that may arise from such claims under article 1 65 of the Constitution 2010 is not ousted at all. Similarly, the appellate mech 5

page 5 of 8

KER262/2026 anism to the Industrial Court, in the circumstances, cannot be legitimately q uestioned. 64. The Director’s inquiries are also essentially preliminary investigations. S uch mechanisms, set out by statute must be left to run their full course befor e a court intervenes. Not only does this simplify procedures to ensure that co urts focus on substantive rather than procedural justice, but also potentially addresses the problem of backlog of cases, enhances access to justice, encou rages expeditious disposal of disputes, and lowers the costs of accessing justi ce. 65. There is also the added benefit that inquiries by the Director inevitably m eans that work injuries and accidents are well captured and understood by h is office. He can for example take measures or instruct his officers to hasten remedial administrative measures to avoid further occurrence of similar inci dents. 66. In addition, the Director is in essence performing a quasi-judicial functi ons under section 23 and by dint of article 165 (6) "The High Court has sup ervisory jurisdiction over the subordinate courts and over any person, body o r authority exercising a judicial or quasi-judicial function." His actions and decisions, even without review or appeal, are therefore still subject to the ove r-riding authority of the High Court. 67. With regard to section 52, we note that both the High Court and the App ellate Court determined that it was not the intention of the Legislature to lim it appeals from a decision of the Director to the Industrial Court but was a c ase of unrefined drafting. We are in agreement with this finding and that su ch inelegance should be left to the Attorney General and for him to take app ropriate action. 68. The next issue to address is whether section 16 is an ouster clause. In Ju dges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others, SC Petitions 13A of 2013 as consolidated with Petiti on 14 of 2013 and Petition 15 of 2013 [2014] eKLR, this court observed: “[115]... Ouster clauses are provisions in the Constitution or a statute that ta ke away, or purport to take away the jurisdiction of a competent court of law. They deny the litigant any judicial assistance in the relevant matter, and at t he same time deny the courts the scope for making any arbitral contribution 6

page 6 of 8

KER262/2026 with respect to the relevant matter. In short, ouster clauses curtail the jurisdi ction of the court, as the relevant matter is rendered non-justiciable before t he courts...[117] Ouster clauses can be categorized as constitutional or statut ory. Where they are statutory ouster clauses, the statute may confer exclusiv e jurisdiction on the relevant body to determine the relevant matter. In such a case, the relevant body must act under the statute, and not outside it.” 69. We have stated that section 16 cannot be read in isolation because if rea d with section 23 and 52 of the Act, the Act provides for legal redress to the I ndustrial Court (now the Employment and Labour Relations Court) and the refore judicial assistance can be sought by aggrieved parties from decisions of the Director and the court can make a determination with respect to all re levant matters arising from those decisions. It cannot, therefore, be the case that section 16 amounts to an ouster clause. It is in fact merely facilitative of what may eventually end up in court.” [16] The Court agrees that this claim was instituted on 25/1/2023 long after the Supreme Court had rendered its decision in Law Society of Kenya v Attorney General & Another (Supra). On 28/4/2023, the Supreme Court issued Practice Directions relating to pending court claims for compensation for work related injuries and diseases instituted prior to the Supreme Court decision inter alia that, “(a) Section 16 as read with Sections 23 and 52 of the WIBA does not limit access to courts but creates a statutory mechanism where any claim by an employer under the Act is subjected, initially, to a process of alternative dispute resolution mechanism starting with an investigation and award by the Director of Occupational Safety and Health Service and thereafter under Section 52 an appeal mechanism to the Employment and Labour Relations Court (formerly the Industrial Court).” [17] The Director of Occupational Safety and Health Services was the proper forum, in the first instance, to receive, investigate and determine the Appellant’s claim. In the event of delay and/or administrative inaction on the part of the Director, as alleged herein, the Appellant’s recourse lay not in instituting an ordinary civil suit but in commencing judicial review proceedings before the Employment and Labour Relations Court, seeking orders of mandamus to compel the Director to perform the statutory duty imposed by the law. By invoking the jurisdiction of the trial court 7

page 7 of 8

KER262/2026 without first exhausting the laid down alternative dispute resolution mechanism, the Appellant circumvented the express provisions of the Work Injury Benefits Act. [18] In the circumstances, this court finds that the institution of the suit before the trial court was in contravention of the express provisions of Sections 16, 23, 26 and 52 of the Work Injury Benefits Act, and consequently, the trial court lacked the requisite jurisdiction to hear and determine it. ORDERS [19] Accordingly, for the reasons set out above, the Court finds that the appeal is without merit, and it is dismissed. [20] There shall be no order as to costs. Order accordingly. DATED AND DELIVERED THIS 30TH DAY OF JULY 2026. EDWARD M. MURIITHI JUDGE APPEARANCES: Mr. T. Njoroge for the Appellant. Mr. Mburu for Mr. Gachie for the Respondent. 8

page 8 of 8