Msigo v Coast Builders & Construction Limited (Civil Appeal E137 of 2016)  KEHC 2273 (KLR) (20 March 2023) (Judgment)
Neutral citation:  KEHC 2273 (KLR)
Republic of Kenya
Civil Appeal E137 of 2016
DKN Magare, J
March 20, 2023
John Kibuni Msigo
Coast Builders & Construction Limited
(Being an Appeal form judgment of the learned Honourable N Njagi SPM made on July 21, 2016 in the Mombasa RMCCC ELRC No. 931 of 2015 delivered on December 2, 2021)
1.This is an appeal from the decision of the Hon N Njagi, Senior Principal Magistrate given on July 21, 2016 form Mombasa RMCC 931 of 2015 on December 2, 2021.
2.The decision was to the effect that the appellant had not availed sufficient efficient to prove his case. The appellant filed a Memorandum of Appeal, which sets out 6 grounds of appeal. Ground no 4 is instructive and as such I need to set it out verbatim. It states: -
3.In the Defence dated June 22, 2015, the respondent denies the existence of an employment contract. The respondent had an alternative averment where they blame the appellant for not working diligently and as such was an author of his own misfortunes. The appellant in paragraph 3 of the Plaint also avers that he was a casual employee of the appellant. The dispute of this nature falls within the purview of the Employment Act and the injuries are injuries within the meaning of the Work Injuries Benefits Act.
4.There is no doubt whatsoever that from pleadings, proceedings and even the Memorandum of Appeal that the dispute arose from injuries that reportedly sustained in the course of employment with the respondent. This is equally admitted in the appellant’s submissions. The respondent did not file submissions.
5.Since submissions deal with the merit of the appeal, I need to deal with the competent of the appeal before I proceed to the merit of the appeal. There are other aspects that need to be addressed. However, I must be satisfied that this is the court that needs to address them.
6.It is important to recall that section 4 Employment and Labour Relations Court Act, cap 234B establishes a court known as of the Employment and Labour Relations Court. The said section is a normative derivative of the Constitution, and it reads -
7.The jurisdiction of the Employment and Labour Relations Court circumscribed under 12 of the Employment and Labour Relations Court Act. The section reads , in part as follows: -a.disputes relating to or arising out of employment between an employer and an employee;
8.The nature of disputes that arose in the court below has been provided. There is also judicial precedence on the same. While addressing an employer-employee relationship. While addressing a similar issue, Hon Mr Justice Alfred Mabeya in Francis Mutunga Musau v Devki Steel Mills Limited  eKLR observed as doth: -
9.Article 162(2) (a) establishes jurisdiction over employment dispute on the Employment and Labour Relations Court. This court was established with exclusive jurisdiction of the matter it governs.
10.On the other hand, this court is established under article 165 of the Constitution with specific duties assigned to the court. Further, under Article 165(5) of the Constitution, the High Court is prohibited from dealing with matters which are within the exclusive competence of courts of equal status contemplated under article 162 of the Constitution.
11.This was buttressed in the Supreme Court in the case of Republic v Karisa Chengo & 2 others  eKLR at paragraph 52 the Supreme Court stated as doth: -
12.Do we have a law specifically placing this dispute on those courts or we are dealing with the application using hyperbole, conjecture guesswork and malafides. Section 87 of the Employment Act places the cases of this nature not in this court but in the Industrial court. The section provides as doth: -
13.The Employment and Labour Relations Court is the successor of the industrial court under Section 36 of the Employment and Labour Relations Court Act. It is that court that hears appeal from employment matters. I also note that the matter falls within the meaning of the work injury benefits act.
14.There have been decisions of courts above this court on the fate of such matters. I am bound by those decisions and as such I have no jurisdiction to overturn them. These decisions include the decision of the supreme court in Law Society of Kenya v Attorney General & another  eKLR, which decision is binding on this court. In that decision, Supreme Court upheld a court of Appeal decision which decided as doth: -
15.In Bloomingdale Roses (K) Ltd v Gladys Kathure Nteere  eKLR, the Court Hon. Justice Nzioki Wa Makau held as doth: -
16.In Samuel Kamau Macharia & Another Vs KCB & 2 Others (2012)eKLR, the Supreme Court, the court was particular that there must be jurisdiction and the same cannot be conferred by consent, by connivance or by craft. The court was precise and held as doth: -
17.This is another way of staying that the subject matter determines jurisdiction. It is not the court’s views of fairness, of expedience, feelings, emotion, or other matters outside the jurisdiction of the court. It is worse for the appellate court as it is mostly a creature of statute. You cannot fault a court you are not allowed to fault.
18.On the other hand, also the court cannot by sheer laziness or dislike for a file divest itself of jurisdiction that it has. In support of that contention, Justice Nyarangi quoted in Motor Vessel,1989eKLR Lilian S. Justice Nyarangi JA laid with approval words and phrases legally defined – Vol 3: I to N page 113.
19.Phoenix of E A Assurance Company Limited v S M Thiga t/a Newspaper Service  eKLR, the court of appeal (Karanja, Gatembu & Sichale, JJ A) stated as doth: -
20.What there is the remedy for the filing of this appeal in a wrong court? As I held recently in Nairobi HCCC Petition No 200 Of 2021- Constitution Petition No. E 200 Of 2021- Stephen Juma -Versus- Mkopa Holdings Ltd (T/A Mkopa Sola (K) Ltd & Anor (Ur) I stated as doth: -
21.In the circumstances the issue of jurisdiction cannot be gain said. Where there are mixed issues, then the court has to look for a dominant issue. In this matter there is only one issue, liability for a work injury by an employee during the course of employment.
22.There is no other issue to be able consider the aspect of predominance. The issue of predominance was dealt with in Mohammed Ali Baadi & Others Versus AG & 11 Others (2018) eKLR where the court held, at paragraph “The Supreme Court in Republic vs Karisa Chengo & 2 Others amplified and pertinently held that each of the superior courts established by or under the Constitution has jurisdiction only over matters exclusively reserved to it by the Constitution or by a statute as permitted by the Constitution. The holding in this case however, does not resolve the knotted question of which court among the High Court and the two equal status courts under article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases are cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. As demonstrated by the issues identified above, this is one such hybrid case.”
23.Given that this is a purely employment matter, there is no remedy. The appeal ought to have been filed in the Employment and Labour Relation Court. I therefore find that I cannot go into the merit of the appeal without first having jurisdiction to do so. Having fallen within the former, the appeal herein is struck out for lack of jurisdiction.
24.However, I do not grant the respondent costs and for good measure. On October 3, 2022., the respondents were to place the submissions in the court file. They failed to do so. They have not been active in the matter. Thus, they driven themselves out of costs. In any case, given the employer- employee relationship, that the Court does not see costs as warranted.
25.The court does not have jurisdiction to handle this appeal for reason of being both an employment matter and a Work injury Benefit Act case.
26.The appeal is consequently struck out with no order as to costs.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 20TH DAY OF MARCH, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.HON MR JUSTICE DENNIS KIZITO MAGARE JUDGE OF THE HIGH COURT, MOMBASAIn the presence of:No appearance for the appellantMiss Kagiri advocate for the respondent