(1)This is appeal arises from the judgment and decree passed in Mombasa CMCC No. 1571 of 2017: Gasper Tsori Dida v S.S. Mehta & Sons Limited in which the respondent sued the appellant for compensation in damages for injuries sustained in the course of his employment. The respondent had contended that he was employed by the appellant as a compressing machine operator; and that on or about August 29, 2012, while engaged in the course and scope of his employment at Jaribuni, a colleague who was filling a tyre failed to monitor and control the amount of pressure being released into the tyre. As a result, the pressure exceeded the limit, causing the tyre to burst thereby occasioning the respondent severe injuries.
(2)The respondent had asserted before the lower court that the accident was occasioned by breach of duty on the part of the appellant and/or the negligence on the part of the appellant’s employees, servants and/or agents for which the appellant was vicariously liable. Thus, the respondent supplied particulars of breach of duty on the part of the defendant and negligence of its employees at paragraph 6 of his Plaint dated August 28, 2017. He likewise set out the particulars of injuries and special damages at paragraph 7 of the Plaint and prayed for judgment against the defendant for general and special damages together with interest and costs.
(3)The claim was resisted by the appellant through the law firm of M/s C.B. Gor & Gor Advocates. In its Defence dated October 18, 2017, the appellant denied that the respondent was employed by it as a compressing machine operator. While conceding that the respondent was involved in an accident as alleged, the appellant denied that the accident was attributable to any breach of duty on its part or negligence of its employees. It therefore denied that it was vicariously responsible for the respondent’s pain, loss and suffering. In the alternative, the appellant contended that the accident was caused and/or substantially contributed to by the negligence of the respondent. It therefore prayed for the dismissal of the respondent’s suit.
4.A perusal of the lower court record shows that, upon hearing the parties, the learned magistrate apportioned liability between the parties at 90:10 in favour of the respondent. In its judgment dated February 25, 2020, the lower court assessed the damages payable to the respondent in the total sum of Kshs. 1,961,960/=; guided by the medical report of Dr. Adede, in which the respondent’s permanent partial disability was assessed at 55%. The lower court also awarded the respondent interest on the aforementioned sum along with costs of the suit.
5.Being aggrieved by the judgment of the lower court in its entirety, the appellant filed this appeal on March 4, 2020on the following grounds:(a)That the learned magistrate erred in not holding that the respondent’s suit was time-barred under section 4(1) of the Limitation of Actions Act, chapter 22 of the Laws of Kenya and section 90 of the Employment Act (cap 226) by reason of the fact that the suit was not filed until September 18, 2017, well after 3 years from the date on which the cause of action arose.(b)That the learned magistrate erred in not holding that the respondent ought to have filed the suit on before the August 28, 2015.(c)That the learned magistrate erred in holding that the respondent was only 10% to blame for the accident, contrary to the evidence before him.(d)That the learned magistrate failed to give any or any adequate reasons of how he arrived at the figure of 10% contributory negligence on the part of the plaintiff.(e)That the learned magistrate erred in failing to consider or adequately consider the evidence of the defence witness, one Raphael Chai Nyawa, whilst determining the aspect of liability.(f)That the trial magistrate erred in failing to hold that the respondent was the author of his own misfortune since he was not mindful of his own safety whilst operating the compressor machine.(g)That the learned magistrate erred in failing to hold that the respondent was in sole control of the said compressor machine and failed to observe the pressure gauge and filled excess air in the tyre as a consequence whereof the same burst and injured him.(h)That the leaned magistrate erred in failing to hold that by reason of the respondent’s failure to wear a helmet and goggles the injuries sustained by him were much more severe.(i)That the learned magistrate failed to consider or adequately consider section 13(1) of the Occupational Safety and Health Act.(j)That the learned magistrate erred in awarding a sum of Kshs. 2,000,000/= to the respondent as general damages when in all the circumstances of this case the said amount is so inordinately high that it amounts to a wholly erroneous estimate.(k)That the said award of Kshs. 2,000,000/= is altogether disproportionate to the injuries sustained by the respondent and is not in keeping with other comparable awards made in respect of similar injuries.(l)That the learned magistrate failed to give any or any adequate reasons of how he arrived at the figure of Kshs. 2,000,000/= general damages.(m)That the learned magistrate erred in failing:(i)to appreciate the significance of the various facts that emerged from the evidence of Raphael Chai Nyawa (DW1);(ii)to consider or properly consider all the evidence before him;(iii)to make any or any proper findings on the aspect of quantum of damages on the evidence before him.(n)That the learned magistrate erred in failing to consider or adequately consider all the evidence before him and the written submissions filed by counsel for the appellant.
6.Accordingly, the appellant prayed that its appeal be allowed with costs; and that the judgment of the lower court delivered on February 27, 2020 be set aside or varied by this court; and that an appropriate order for costs be made in respect of the appeal and the proceedings in the court below.
7.The appeal was canvassed by way of written submissions, pursuant to the directions given herein on July 2, 2021. Accordingly, Mr. Adede for the appellant filed his written submissions on August 9, 2021. He proposed that the issue of jurisdiction be given precedence. He accordingly faulted the learned magistrate for proceeding with the hearing of the suit notwithstanding that it was time-barred under section 4(1) of the Limitation of Actions Act. Hence, counsel urged the court to determine the issue of jurisdiction before delving into the merits of the appeal. He relied on Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited  eKLR for the proposition that jurisdiction is at the heart of any proceeding; and that a court should ensure it has the requisite jurisdiction before entertaining and/or disposing of any matter before it, whether or not the issue is raised by the parties.
9.On her part, Ms. Nduku relied on her written submissions dated 15th November 2021. She conceded that the issues in dispute fall within the preserve of the Employment and Labour Relations Court; and on that account urged for the dismissal of the appeal without further ado. On whether the trial court had jurisdiction to hear and determine the matter, Ms. Nduku submitted that the respondent applied for and obtained leave to file the suit out of time for purposes of section 4 of the Limitation of Actions Act, vide Misc. Civil Suit No. 962 of 2017 (O.S.); and therefore the submission that the suit is time-barred is misconceived. In any case, she submitted, the point ought to have been taken before the lower court, granted the provision of Order 2 Rule 4 of the Civil Procedure Rules.
10. Further to the foregoing, Ms. Nduku also relied on Owners of Motor Vessel “Lillian S” (supra) but for the holding that:
11.Counsel took the view that, since the issue of jurisdiction was raised by the appellant for the first time in its submissions herein, the court ought to refrain from determining the appeal on that ground, as it would otherwise be acting as a court of first instance. He relied on David Sironga Ole Tukai v Francis Arap Muge & 2 others  eKLR for the proposition that parties are bound by their pleadings just as the court hearing the matter. On the merits of the appeal, Ms. Nduku acknowledged that counsel for the appellant opted not to delve into an exposition of the other grounds of appeal, and posited that that was an erroneous approach. On account of that omission, she prayed that the appeal be dismissed for want of prosecution.
12.It is manifest from the foregoing that the appellant raised a technical issue as to the competence of the appeal and therefore the merits of the appeal was not delved into by counsel in their written submissions. In the premises, instead of a judgment on the appeal, this decision is a ruling limited to the issue of jurisdiction. The objection is two-fold in so far as it concerns not only the jurisdiction of the lower court, but also that of this court in handling the appeal.
14.The same position had been taken in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd.(supra) thus:
15.Mr. Adede’s two-pronged contestation on jurisdiction was resisted by Ms. Nduku, whose submission it was that the point ought to have been taken before the lower court, granted the provision of Order 2 Rule 4 of the Civil Procedure Rules. That provisions states:
16.She also relied on Owners of Motor Vessel “Lillian S” (supra), in which it was held that:
18.Similarly, in Kenya Ports Authority v Modern Holdings [E.A] Limited  eKLR the Court of Appeal restated its stance thus: -We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”(See All Progressive Grand Alliance (APGA) v. Senator Christiana N.D. Anyanwu & 2 others, LER  SC. 20/2013 Supreme Court of Nigeria). We agree with these authorities and, hold that the question of jurisdiction was properly raised before this Court because, as they say in Latin, ex nihilo nihil fit (out of nothing comes nothing).
19.It is plain then that the arguments by Ms. Nduku to the effect that the issue of jurisdiction cannot be raised for the first time on appeal is untenable.
20. That said, I now turn attention to Mr. Adede’s argument that that the lower court suit was barred by dint ofsection 4(1) of the Limitation of Actions Act, which provides for a limitation period 6 years for contractual disputes. The argument appears self-defeating because, under that provision of the law the respondent had up to August 28, 2018 to file the lower court suit; which would mean that the suit was filed within time. However, since it is common ground that the suit was founded in tort, the correct provision of the law that Mr. Adede may have had in mind is section 4(2) of the Limitation of Actions Act, which provides that:
21.It is noteworthy however that undersection 27 of the Limitation of Actions Act, it is permissible for a party to seek and obtain extension of time. It provides:(1)Section 4(2) does not afford a defence to an action founded on tort where—(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law; and(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.
22.And, Ms. Nduku did demonstrate that such extension was sought and obtained by the respondent in Mombasa SRM’s Civil Suit No. 962 of 2017 (O.S.) as per the Order dated October 17, 2017. Under section 60(1)(e) of the Evidence Act, the court is entitled to take judicial notice of the sealed Order without proof. I therefore find no merit in Mr. Adede’s argument that the respondent’s suit was time-barred.
27.The learned Judge however acknowledged the need for a clear pronouncement from the Court of Appeal on the matter. He observed that:I will pause here long enough to agree with the applicants, in line with the Court of Appeal’s reasoning in the Kenya Cargo Case that a claim for personal injuries arising in the course of employment may sound in either tort or contracts or both. A plaintiff can carefully place her bets in either and one can imagine a plaintiff keenly drawing her pleadings so that it sounds only in one or the other cause of action. However, in most cases, and for good reasons, Plaintiffs present a mixed case – sounding in both torts and contracts. In these cases, because the underlying claim is predicated on the employment relationship, it would follow that the contract action would be predominant...I once again readily admit that this is a question that has caused me much anxiety. It seems plain that parties are still facing much uncertainty on this question as there has been no authoritative enunciation yet of the correct legal position by the Court of Appeal. Suffice it to say that I have not been persuaded by the present application that jurisdiction lies with the High Court...”
28.From the standpoint of WIBA, the Supreme Court has pronounced itself in Law Society of Kenya v Attorney General & another (supra). Here is what the Supreme Court had to say:(63)... it is evident that by granting the Director authority to make inquiries that are necessary to decide upon any claim or liability in accordance with WIBA, the jurisdiction of the High Court to deal with constitutional questions and violations that may arise from such claims underarticle 165 of the Constitution 2010 is not ousted at all. Similarly, the appellate mechanism to the Industrial Court, in the circumstances, cannot be legitimately questioned…(69)We have stated that section 16 cannot be read in isolation because if read withsection 23 and 52 of the Act, the Act provides for legal redress to the Industrial Court (now the Employment and Labour Relations Court) and therefore judicial assistance can be sought by aggrieved parties from decisions of the Director and the court can make a determination with respect to all relevant 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.Flowing from the above analysis, it is apparent that in considering the nature and extent of the limitation placed undersection 16 of the Act, it becomes clear that it does not permanently limit the right to access courts by an aggrieved party. It is only the initial point of call for decisions in workers’ compensation. When read in whole withsection 23 and 52 of the Act, therefore, a party is not left without access to justice nor do employees or employers have to result to self-help mechanisms. What the section does, is that it allows the use of alternative dispute resolution mechanisms to be invoked before one can approach a court…”
29.It is therefore clear from the decision of the Supreme Court that the appellate jurisdiction of the Employment and Labour Relations Court in such matters cannot be questioned. Indeed,section 12 of the Employment & Labour Relations Court No. 12 of 2011, stipulates that:(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.
30.Further, the Employment Act No. 11 of 2007 under section 87 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.
31.Hence, this being an appeal arising from a work place injury, is a dispute between an employer and employee for purposes of the Employment and Labour Relations Court Act. Accordingly, it is my finding that the Court with jurisdiction to hear and determine this appeal is the Employment and Labour Relations Court. In the premises, it is hereby ordered, in the larger interests of justice, that this appeal be transferred to the Employment and Labour Relations Court, Mombasa, for determination.
32.It is so ordered.