1.By a Plaint dated 4th April, 2013 filed before the Chief Magistrate’s Court at Machakos in Machakos CMCC No.448 of 2013, the Respondent herein sought general damages for pain, suffering and loss of amenities, special damages of Kshs. 2,500/-, costs and interest against the Appellant for the injuries she claimed to have sustained on 3rd February, 2011 while working for the Appellant.
2.According to the appellant, on 6th February, 2011 she was injured while working for the 1st defendant, Protex Kenya EPZ as a machine operator. Apparent, the Appellant herein, New Wide Garment Kenya EPZ Ltd, was the successor to the said defendant. It was her case that the working space was congested with machines and that while walking out one of the machines hit her on her abdomen causing her to fall down and as a result, she sustained injuries to her back. It was her case that the appellant company was to blame for not providing safety working and safety devices. She further contended that the appellant failed to provide her with any or adequate protective gear or equipment, safe working system of work, exposed her to danger which the appellant knew or ought to have known, warn the respondent of imminent danger, provide adequate instructions to the respondent and co-workers and ensure the safety of the respondent and her co-workers.
3.In his Judgment, the trial magistrate found that the appellant was wholly to blame for the accident. The trial court then assessed general damages in the sum of Kshs. 300,000/- and special damages in the sum of Kshs. 7,500/-. It was that decision that provoked this appeal.
4.Before proceeding to determine the issues raised herein, it is imperative that this court determines whether it has jurisdiction to hear and determine the issues raised herein.
7.Several decisions have been handed down by the courts regarding the issue of jurisdiction particularly what amounts to want of jurisdiction. As was held by Ochieng, J in Sammy Likuyi Adiema vs. Charles Shamwati Shisikani Kakamega HCCA No. 144 of 2003, a Tribunal may have jurisdiction to hear and determine issues, but it may give orders, which were in excess of its powers. In effect, if a tribunal made orders beyond its powers, that is not necessarily synonymous with the tribunal lacking jurisdiction to entertain the dispute in the first place. Jurisdiction may, in my view, therefore be conferred at two levels. It may be that the court lacks jurisdiction to entertain the dispute ab initio, in which case it ought to down its tools before taking one more step as was held in Owners of the Motor Vessel “Lilian S” v Caltex Oil (K) Ltd  KLR 1. It may also be that though the Court has jurisdiction to enter into the inquiry concerned it lacks the jurisdiction to grant the relief sought. It was therefore held by Sir Udo Udoma, CJ in Uganda General Trading Co Ltd v N T Patel Kampala HCCC No 351 of 1964  EA 149, expressed himself as follows:
8.Article 165(3) of the Constitution provides as follows:(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;………………(e)any other jurisdiction, original or appellate, conferred on it by legislation.
9.Article 165(5)(6) and (7) thereof on the other hand provides:(5)The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162 (2).(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
10.The Courts contemplated in Article 162(2) are those with the status of the High Court to hear and determine disputes relating to employment and labour relations; and the environment and the use and occupation of, and title to, land. Parliament was donated the power to establish the said courts and determine their jurisdiction and functions by the same article. Pursuant to that power Parliament enacted the Employment & Labour Relations Court Act No. 20 of 2011 which provides in section 12 (1) as follows:(1)the court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to in accordance with article 162(2) of the constitution and the provisions of this act or any other written law which extends jurisdiction to the court relating to employment and labour relations including;-(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employers’ organization and a trade union’s organization;(d)disputes between trade unions;(e)disputes between employer organizations;(f)disputes between an employers’ organization and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer’s organization or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.
11.Apart from that section 87 of the Employment Act No. 11 of 2007 provides as follows:-(1)Subject to the provisions of this Act whenever –(a)an employer or employee neglects or refuses to fulfill a contract of service; or(b)any question, difference or dispute arises as to the rights or liabilities of either party; or(c)touching any misconduct, neglect or ill-treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court.(2)No court other than the Industrial court shall determine any complaint or suit referred to in subsection (1).(3)This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.
12.Therefore, since the High Court’s power and authority is derived from the Constitution, where the Constitution limits the jurisdiction of the High Court, that limit is legal and proper. In my view by specifically creating the courts with the status of the High Court to deal with employment and labour relations disputes on one hand and environment and land disputes on the other, the people of Kenya appreciated the importance of these specialised courts.
13.Under Article 165(5)(b) of the Constitution this court has no power to determine issues which fall within the jurisdiction of the courts contemplated in Article 162(2) aforesaid. Pursuant to the powers conferred upon Parliament under article 162(3) of the Constitution to “determine the jurisdiction and functions of the courts contemplated in clause (2)”. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialised Courts.
15.The consequence thereof is that appeals in relation to work injuries are handled by the Employment and Labour Relations Court.
17.In this case, I am satisfied that this dispute can be properly dealt with by the ELRC. This court ought not to readily clothe itself with jurisdiction when other Constitutional organs have been bestowed with the jurisdiction to entertain the same. This was the position adopted in Peter Oduor Ngoge v Hon Francis Ole Kaparo, SC Petition 2 of 2012, [para. 29-30] where it was held:
19.The demarcation of the jurisdiction between the High Court and Courts of equal status was the subject of Supreme Court’s decision in Petition No 5 of 2015- Republic v Karisa Chengo & 2 others where the Court expressed itself inter alia as hereunder:
20.Having considered the issues raised herein I associate myself with the sentiments of the Court in East African Railway Corp v Anthony Sefu  EA 237, where it was held that:
21.It is my view that in the circumstances of this case, it would not advance the course of justice to terminate these proceedings since the dispute can be properly dealt with by the ELRC. Accordingly, the order which commends itself to me and which I hereby make is that further proceedings in this appeal will be undertaken by the ELRC since the said Court is a Court of equal status as the High Court and is empowered to grant the reliefs sought herein.
22.The costs will be in the cause.