1.The background of the appeal herein is rather interesting, and I will first set it out before addressing the issues involved:-a.the appellant was the plaintiff in Mombasa CMCC No 2462 of 2018 whereby he sued the respondent vide a plaint dated December 4, 2018 and filed in court on December 6, 2018, seeking to be paid damages arising from work injuries sustained by himself in the course of his employment by the respondent on October 2, 2015, allegedly due to negligence on the part of the respondent, its authorized servants and/or agents.b.the respondent was said to have filed a memorandum of appearance and a statement of reply on December 19, 2018, which were allegedly served on the appellant’s (plaintiff’s) counsel, but were never placed on the court’s record.c.hearing of the suit proceeded ex-parte on January 19, 2021 when the appellant’s case was heard and closed, as the respondent (defendant) and/or its counsel did not attend court, though said to have ben aware of the said hearing date. The respondent’s case was thereupon closed as well.d.the respondent filed an application on January 19, 2021 seeking to set aside the exparte proceedings. The trial court found no merit in the said application and it dismissed the same vide a ruling dated March 18, 2021.e.aggrieved by the said ruling, the respondent appealed against the same vide Mombasa ELRC Appeal No 21 of 2021, which it subsequently withdrew.f.subsequent to the said withdrawal, the respondent filed an application dated June 3, 2021 in the trial court, seeking review, variation or setting aside of the said court’s ruling dated March 18, 2021, the subject matter in the withdrawn appeal. The trial court allowed the application vide a ruling dated August 26, 2021.
2.The appellant appealed to this court vide the appeal herein, and set forth the following grounds of appeal:-a.the learned magistrate erred in law and fact in dismissing the application dated June 30, 2021 (sic).b.the learned magistrate erred in law and fact in not considering the fact that the application was for review of orders that the respondent had earlier sought in the High Court through an appeal and were denied.c.the learned magistrate erred in failing to consider the documentary evidence and submissions presented by the appellant in considering the application in question.d.the learned magistrate erred in law and fact in ruling that the appellant had failed to file response to the application after setting the same (down) for ruling on August 26, 2021 on being satisfied with compliance by both parties.e.the ruling was against the weight of the need to dispense justice with fairness and thus bad in law.
3.I will address all the grounds of appeal together, and start by pointing out that the appeal herein stemmed from a suit that was incompetent and invalid at its inception, and one that never was.
4.I say so because the lower court suit (Mombasa CMCCC No 246 of 2018) is/was a work injury claim. I have already stated this fact in paragraph 1 herein. the Appellant pleaded as follows in paragraphs 3, 4, 5, 6 and 7 of his plaint dated December 4, 2018:-
5.Section 16 of the Work Injury Benefits Act (Cap 236 Laws of Kenya) whose, date of commencement is December 20, 2007, provides:-
7.It follows that the suit filed by the appellant in the lower court in 2015 was filed in a court without jurisdiction. The trial court lacked jurisdiction to in any way entertain or hear and/or determine the suit or any application thereon. It matters not whether or not the parties herein had submitted to the trial court’s jurisdiction.
9.Although none of the parties herein raised the issue of jurisdiction, either in this court or in the court below, this court cannot ignore an issue as pivotal as jurisdiction, as jurisdiction is the engine that powers and moves the wheels of justice. Without jurisdiction a court of law cannot move. In the case of Owners of Motor Vessel “Lilian S” -vs- Caltex Oil (K) Limited  KLR1, the Court of Appeal (Nyarangi, JA, as he then was) stated as follows:-
10.The question that arises is whether this court, while sitting as an appellate court, can take up the issue of jurisdiction when none of the parties to the appeal has raised the same, either on appeal or in the trial court. In the case of Kenya Ports Authority v Modern Handling EA Limited  eKLR, the Court of Appeal stated as follows:-
11.In the present interlocutory appeal, both parties have filed submissions on the appeal pursuant to the court’s directions in that regard. I have read and considered the filed submissions. As already stated, none of the parties has addressed the court on the issue of jurisdiction. Jurisdiction is a mater of law and the court cannot close its mind to that fact. I find and hold that this court has no jurisdiction to hear and to determine the appeal herein. The appeal arises from a ruling of the trial court which was made without jurisdiction. I decline jurisdiction over the appeal, which is, in any case, invalid.
12.This court’s jurisdiction over occupational accidents and liability in relation thereto and compensation thereon can only be invoked after the Director of Occupational Safety and Health Services has determined the issues of liability and compensation. Sections 26 and 52(2) of the Work Injury Benefits Act are called in aid.
13.In sum, the appeal herein is incompetent and is hereby struck off with no orders as to costs. Although the appeal herein is an interlocutory appeal, this court’s finding on lack of jurisdiction on the part of the trial court automatically seals the fate of the suit pending in the trial court.