1.This is an application by way of a Preliminary Objection dated 19th October, 2022 and comes out thus;1.That this Honourable Court does not have jurisdiction to hear and determine this matter pursuant to the provisions of sections 16 of the Work Injury Benefits Act 2007.2.That the statement of claim herein does not disclose any cause of action triable by this Court as against the Respondent.3.That the suit contravenes mandatory provisions of the law and as such the suit is ipso facto an abuse of the court process and ought to be truck out with costs to the Respondent.
2.The Claimant/Respondent in his Replying Affidavit sworn on 31st October, 2022 avers as follows:20.That the Respondent has attempted to reach out to me with an offer to pay me the outstanding salary arrears claimed in my statement of claim and it baffles me why the Respondent would now seek to have this suit truck out yet has not denied liability of my salary arrears.22.That I am now convinced that the filing of the Notice of Preliminary Objection by the Respondent coming after I declined the Respondent’s offer vide my Advocate’s aforesaid letter to the Respondent’s Advocates is a technical gimmick intended to defeat the ends of justice which is a technicality abhorred by Article 159 (2) (d) of the Constitution.23.That contrary to the averments in the Respondent’s Notice of Preliminary Objection dated 19th October 2022, it is the Respondent who has abused the Court process by filing a mischievous, frivolous and vexatious pleading that has no basis in law or fact.24.if indeed the Respondent was acting in good faith, nothing would have been easier than for it to file a reply to my statement of claim and plead that this Honourable Court has no jurisdiction and/or that this suit does not disclose a reasonable cause of action against the Respondent.25.That as it stands now, the Respondent has hitherto not denied owing me the salary arrears and other benefits sought in my statement of claim and this Honourable Court should not ignore a claim that has hitherto not been defended.26.That further to the averments at paragraph 25 above, the Respondent has not denied that it received compensation from its Insurer for the air traffic accident and for the crew of which I was part and the Respondent does not deny that it deliberately withheld and did not pass to me the benefit of that insurance.
3.The Claimant in his written submission dated 16th June, 2023 further opposes the Preliminary Objection and prays that it be dismissed with costs.
4.In support of the Preliminary Objection the applicant as in her written submission dated 10th May, 2023 brought out various authorities in support of application. These are, Owners of the Motor Vessel “Lillian S” –V- Caltex Oil (Kenya) Limited (1989) as cited in Mombasa HCCC No. 171 of 2011 in Mutunga Tea and Coffee Company –V- Shikara Limited and Another (2010) eklr where the court held thus;
5.Again in the case of Law Society of Kenya v Attorney General & Another  eKLRwhere the Supreme Court of Kenya held that:
6.Again, the Court of Appeal in Civil Appeal No. 133 of 2011 – Attorney General –vs- Law society of Kenya &Another upheld the constitutionality of Section 4,16,21(1),23,35(1)(3), 53(1) (2) and 58 of the work Injury Benefits Act 2007. This decision was upheld/affirmed by the Supreme Court of Kenya in the case of Law Society Of Kenya –vs Attorney General & Another  eKLR.
7.This is in reliance on the authority of Zipporah Njoki Kangara v Rock and Pure limited & 3 others  eKLR
8.The Claimant/Respondent submit however contends that the Preliminary Objection is premature because the point forming the subject of the preliminary objection ought to have been pleaded. In other words, the issue of jurisdiction ought first to be pleaded in the Respondent’s defence and the Preliminary Objection should arise by clear implication out of the pleadings. In this matter, the Respondent has hitherto not filed a Reply to the Statement of Claim and according to the Claimant, the issue of jurisdiction cannot be canvassed by way of a Preliminary Objection in the absence of a Reply to the Statement of Claim.
9.On this the Claimant relies to the provisions of Rule 13 (1) of the Employment and Labour Relations Court (Procedure) Rules which provides as follows;
10.The Claimant further submits that the provisions of Rule 13 (1) of the Employment and Labour Relations Court (Procedure) Rules are couched in mandatory terms (using the word shall). It requires the Respondent to file and serve (not to either file or serve). Meaning the Respondent had an obligation within twenty-one from the date of service to file and serve its response to the suit. All what the Respondent has hitherto done is to enter appearance and as far as the Claimant is concerned, the Claim is undisputed and should fixed for formal proof.
11.Further in the case of Independent Electoral And Boundaries Commission V Jane Cheperenger & 2 Others Civil Application No. 36 of2014, the Supreme Court reiterated the principles set out in the Mukhisa biscuit case and held as follows: “A preliminary objection consists of a point of law which has to be pleaded or which arises by clear implication out of the pleadings and which is argued as a preliminary point may dispose of the suit …………………………….. it cannot be raised if any fact has to be ascertained of if what is sought is the exercise of judicial discretion.”
12.The Claimant/Respondent case overwhelmed that of the Respondent/Applicant. He has ably demonstrated that the circumstances this case amount to futile attempt at a preliminary objection. It therefore fails.
13.I am therefore inclined to dismiss the preliminary objection with cost to the Claimant/Respondent.