1.In a ruling delivered or order on September 8, 2022, the Magistrate court at Taveta struck out the appellant’s (plaintiff’s) suit by ordering as follows:-
2.Aggrieved by the decision of the Magistrate’s court, the appellant who was the plaintiff in the trial court, has come to this court on appeal on the following grounds through counsel M/s Kibunja Nyambura & Company: –
3.The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Kibunja Nyambura & Company Advocates for the appellant, as well as the submissions filed by Wainaina Ireri Advocates LLP for the respondent. Both sides cited sections of the Work Injury Benefits Act 2007 as well as decided court cases, with the appellant’s counsel relying heavily on English Common Law and Statutes which altered the common law position, while the respondent’s counsel cited the case of Law Society of Kenya =Versus= Attorney General & Another (2019) eKLR.
4.I note that the plaint dated July 2, 2018, had paragraphs 3, 4, 5 and 6 in which it was pleaded as follows:-
5.To this plaint, the respondents who were the defendants filed a defence as well as a Notice of Preliminary Objection dated January 10, 2021. The trial court then determined the case at an interlocutory stage, and struck it out on the basis of the Preliminary Objection filed, which is now the subject of this appeal. For the record, the Preliminary Objection dated 10th January, 2021 was in the following terms:-
6.Having considered the appeal, the proceedings and decision of the trial court, and the submissions on both sides, I find that an employee under the law in Kenya since 2007 may pursue an employer for injury suffered and allegedly caused by the negligence of an employer under two distinct methods depending on the circumstances of the case.
7.The first method relates to injuries suffered and diseases contracted in the course of employment and for connected purposes, which is governed by the provisions of Work Injury Benefits Act, 2007 which replaced the Workmen’s Compensation Act from 2007.
8.Under this method, which only covers claims arising from injuries or diseases contracted in the course of employment as so established either through pleadings or evidence, the provisions of the Act applies in the place of common law on the repealed Workmen’s Compensation Act.
9.In that regard, Section 16 of the Act, provides as follows:-
10.The above statutory provisions clearly state that an employee who is injured on duty or his or her dependants, cannot directly sue an employer for compensation, unless he or she pursues her claim as provided for under the Work Injury Benefits Act.
11.The second method or situation wherein an employee can pursue an employer for compensation for injury or disease occasioned by the employer, is when such injury or disease is caused outside performance of employment duty or outside the workplace. In that event, an employee or dependant can sue an employer for negligence under the general common law of negligent and seek compensation in the ordinary courts, like any other person.
12.Coming back to the present case, the appellant came to the Magistrate’s court specifically pleading that she was injured in the course of duty, which she described clearly in the plaint. Thus in my view, she was bound by the provisions of the Work Injury Benefits Act, which required her to lodge a claim or notice to the Director of Occupational Health for further processing. In this regard Section 23(1) of the Act provides as follows:-
13.In my view therefore, the pleadings herein having been very clear that the appellant suffered the alleged injuries on duty, she had to comply with the provisions of the Work Injury Benefits Act and reported her claim or given notice of the accident on duty to the Director. The appellant was debarred by Act from suing the employer under common law or the Workmen’s Compensation Act, for alleged injury suffered on duty or in the course of employment.
14.I thus find that the trial court was correct in striking out the appellant’s suit, and this appeal is accordingly hereby dismissed.
15.With regard to costs, as this is an employee versus employer matter, I order that parties will bear their respective costs of the appeal. It is so ordered.
16.The orders apply to Appeal No. E045 of 2022 Voi High Court between same parties.