The Court Decision On Merit Of The Appeal
20.The trial court ruling subject of the instant appeal is dated 28th September 2021 by Hon. N. Barasa (PM) in CMCC Webuye Civil Case No. 5 of 2017 Boniface Mung’aya v Shree Ganesh Enterprises ltd & Another. The trial court stated that the Preliminary Objection was based on Supreme Court Petition No. 4 of 2019 Law Society of Kenya V Attorney General and Central Organisation of Trade Union(K). The trial court relied on the decision in West Kenya Sugar -Co. Ltd v Tito Lucheli Tangale and held: “ The Honourable judge went ahead to find that all cases which were filed between 22nd May 2008 and 3rd December 2019 in courts are properly before court. This case is such a case. In this courts understanding, the decision of ELRC Court gave interpretation to the Supreme Court decision that this court need not belabour on. This court is bound by the decision of the superior court. The upshot is that this court finds and holds that it has requisite jurisdiction to hear and determine this case on the strength of the cited case of West Kenya Sugar Co. Ltd v Tito Luchele Tangale eKLR. The preliminary objection is thus dismissed with costs to the plaintiff which shall be in cause.’’ The court ordered the said decision to apply to the similarly objections raised in series of files in civil cause 6 -10 of 2017 which have been issued with appeal numbers between 15-20 at the court. The decision thus applies to the said appeals respectively.
21.The Court finds that the trial court ruling was based entirely on the decision in West Kenya Sugar Co. Ltd v Tito Luchele Tangale  eKLR and was without independent consideration of the decision of the Supreme Court cited by the Appellant on the WIBA constitutionality. The court determines that the trial court erred in law as the appellant had relied on the Supreme Court decision in Appeal No. 4 of 2019 which the trial court should have considered and reached its own conclusion.
22.The Court of Appeal decision on jurisdiction under WIBA was in Attorney General v Law Society of Kenya & Another  eKLR. The court addressed legitimate expectation of litigants already before court as at time of WIBA effective date as follows:-
23.The Law Society of Kenya aggrieved by the decision of the Court of Appeal appealed to the Supreme Court in Law Society of Kenya v Attorney General & another  eKLR vide Petition No. 4 of 2019, the decision relied on by the Appellant at the trial court. The Supreme Ccourt addressed the issue of legitimate expectation by parties already before court in paragraph 85 as follows:-
24.The Court of Appeal position on the legitimate expectation was in tandem with the High Court interlocutory order by Justice Ojwang (as he then was) above. The Court of Appeal position on the legitimate expectation was limited to pending cases at whatever stage filed under legal regime prior to enactment of WIBA. This Court of Appeal position was upheld by the Supreme Court Law Society of Kenya v Attorney General & another  eKLR vide petition no. 4 of 2019 which held as follows:- “In agreeing with the Court of Appeal, we note that it is not in dispute that prior to the enactment of the Act, litigation relating to work-injuries had gone on and a number of the suits had progressed up to decree stage; some of which were still being heard; while others were still at the preliminary stage. All such matters were being dealt with under the then existing and completely different regimes of law. We thus agree with the Appellate Court that claimants in those pending cases have legitimate expectation that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked. However, were it not for such legitimate expectation, WIBA, not being unconstitutional and an even more progressive statute, as we have shown above we opine that it is best that all matters are finalized under Section 52 aforesaid.”(para 85, emphasis provided ).
25.The Court finds that the Supreme Court held that WIBA not being unconstitutional, save for such legitimate expectation with respect to matters filed prior to its enactment, that it was best that all matters be finalized under section 52 of WIBA Act(emphasis given). Sections 52 (1) and (2) of WIBA further provides:-
26.Applying the foregoing decisions of the Court of Appeal and Supreme Court which are binding on this court, the court finds and determines that the law on work injury related claims is that all pending litigation filed prior to the entry into force of WIBA commenced on the basis of either the Workmen’s Compensation Act or of the common law, or of a combination of both regimes of law are to be finalised on basis of the legitimate expectation that upon the passage of WIBA such cases would be concluded under the judicial process which had been invoked (para 85 of Supreme Court decision supra). Further all other litigation on work injury claims post entry into force of WIBA would proceed before the Director as provided for under Section 52 of WIBA.
27.The Court then finds, respectfully, that the decision West Kenya Sugar Co Ltd v Tito Lucheli Tangale eKLR holding that all litigants who filed their disputes with the courts from 22nd May 2008 to 3rd December 2019 on the firm belief that the judge declared law was the valid law in place then and that they are entitled to successfully assert legitimate expectation in having the claims heard to conclusion before the courts where they had been lodged was not consistent with the holding Supreme Court decision as analysed above which decision is binding on this court. Further the said decision of the court having been overturned by the Court of Appeal on 17th November 2017 it cannot be said the High Court judge made law was still valid upto 3rd December 2019. The court is not persuaded with the argument that the High Court declarations having not been stayed by the court or Court of Appeal would continue to be valid law post the pronouncement of the WIBA as constitutional and in view of the glaring guide on the legitimate expectation application scope under paragraph 85 of the Supreme Court decision.
28.The Court upholds the decision in ELRC Mombasa Manuchar Kenya limited v Denis Odhiambo Olwete Civil Appeal No. 5 of 2019 where the court held as follows:- ‘’The upshot of the decision by the Court of Appeal as confirmed by the Supreme Court is that all work injury claims arising after enactment of WIBA in 2007 were to be processed within the procedure set out in the Act and the original jurisdiction of the court was thus ousted.’’
29.On the submissions on access to justice by the respondent as stated in the decision of the court in West Kenya Sugar Co. Ltd v Titus Lucheli Tangale eKLR being the question of sending the claimants from the seat of justice causing injustice for reasons beyond their control and having relied on the judge made law of the High Court, the court holds that without jurisdiction the court cannot exercise discretion or take any more steps consistent with the decision of Court of Appeal in decision of Nyarangi JA in Owners of the Motor Vessel Lilian “S’ v Caltex Oil (Kenya) ltd 1989 eKLR where the court of Appeal stated :-
30.In view of the foregoing and the binding decision of the Supreme Court in Law Society of Kenya v Attorney General & another  eKLR vide Petition No. 4 of 2019 on all work injury related claims post entry into force of WIBA lying with Director WIBA and only exception on legitimate expectation basis being with respect to litigation pending before court prior to entry in force of WIBA Act that is 2nd June 2008, the instant suit having been filed on the 17th January 2017, the court finds and determines merit in the appeal and finds that the magistrate court erred in holding it had jurisdiction to hear and determine the suit.
31.In this case the court upholds its recent decision delivered on the 3rd November 2022 on a similar issue as the instant appeal being Bungoma ELRC Appeal No. E002 OF 2021 West Kenya Sugar Co. Ltd v Evans Ambule Soita(unreported) where the court held that the magistrate court had no jurisdiction to hear and determine work injury related claims filed post entry into force of WIBA.
32.On the fate of the pending suit before the trial court, the court is guided by the decision of Musyoka J in Mini Bakeries (NRB) limited v Levi Karuz Omedo e KLR where the court held: ‘a suit or appeal filed before the court which has no jurisdiction is incompetent and is not available for transfer to the court with jurisdiction.’’ The Court finds that the authority in Mini Bakeries (NRB) limited is consistent with the Court of Appeal decision in Owners of the Motor Vessel Lilian “S’ v Caltex Oil ( Kenya ) ltd 1989 eKLR (supra) to the effect that jurisdiction is everything and without it the court cannot take one more step and the suit filed in the trial court can only be struck off.
Conclusion and disposition
33.The Appeal is held to be with merit and is allowed. The Court orders that the magistrate court has no jurisdiction to hear and determine work injury related claims filed after commencement of Work Injury Benefits Act(WIBA).
34.The Ruling of the trial court in Webuye SPMCC No. 5 of 2017 Boniface Mung’aya v Shree Ganesh Enterprises Limited and Another delivered on the 28th September, 2021 is set aside and in its place substituted with an order that the Preliminary Objection dated 28th February 2020 is upheld and the suit dated 17th January 2017 struck off for want of jurisdiction.
35.The Court in order to temper justice with mercy and taking into consideration the conflicting decisions of the court on the jurisdiction on work injury related claims, the court orders each party to bear own costs both in this appeal and in the trial magistrate’s court.
36.The ruling of the trial court in Webuye SPMCC No. 5 of 2017 Boniface Mung’aya v Shree Ganesh Enterprises Limited and Another applied in civil cases numbers 6-10 of 2017. Accordingly the judgment in this appeal being Bungoma ELRC Appeal No. E018 of 2021 Shree Ganesh Enterprises Limited and Another v Boniface Mung’aya applies accordingly to the appeals arising from Civil Magistrate Court Cases Numbers 6-10 of 2017 being:-a. ELR Appeal No. E.015 OF 2021 -Shree Ganesh Enterprises ltd & John Makuto Machani v Julius Khisa David.b. Bungoma ELRC Appeal No. E016 of 2021- Shree Ganesh Enterprises ltd & John Makuto Machani v Douglas Wafula Wekesa.c. Bungoma ELRC Appeal No. E017 of 2021 – Shree Ganesh Enterprises ltd & John Makuto Machani v Wekesa Simiti Wanjalad. Bungoma ELRC Appeal No. E019 of 2021 -Shree Ganesh Enterprises Ltd & John Makuto Machani v Nelson Nyongesa Wanjala.e. Bungoma ELRC Appeal No. E020 of 2021 – Shree Ganesh Enterprises Ltd & John Makuto Machani v Moses Kwone.
A. It is so ordered.