The Defendants’ Written Submissions.
5.The Defendants submitted that their Preliminary Objection raised a point of law as it raised the issue of this court’s jurisdiction to hear and determine the matter.
6.It was the Defendants’ submission that this court did not have jurisdiction to determine the matter. That section 16 as read with section 23 (1) of the Work Injury Benefits Act confers the power of adjudication of any claim from compensation arising from injury or death in the work place upon the Director of Occupational Safety and Health Services and that section 21 of the Work Injury Benefits Act 2007 barred institution of court proceedings by an aggrieved party save for an appeal to this court.
7.The Defendants submitted that jurisdiction in such matters was provided for in Law Society of Kenya vs Attorney General & another (2019) eKLR where the Supreme Court upheld the Court of Appeal decision that work related injury claims should be instituted with the Director of Occupational Safety and Health Services. That this court neither had the original or appellate jurisdiction to deal with such matters.
8.It was the Defendants’ submission that the Work Injury Benefits Act had given directions and proper procedure that are to be followed. That the Plaintiff chose to abuse the said procedure by filing his suit in a court that lacked jurisdiction.
9.The Plaintiff/Respondent failed to respond to the Preliminary Objection and did not file his written submissions either. There is also no record that he had withdrawn the suit as he had earlier intimated.
10.I have considered the Preliminary Objection dated 28th November 2022 and the Defendants/Applicants’ written submissions dated 29th March 2022. The only issue for my determination was whether this court has the jurisdiction to hear and determine the present suit.
11.It is trite law that a court must have jurisdiction to hear and determine a suit or an Application from the very beginning. Without it, the court has no option other than to down its tools. The Supreme Court in the case of R vs Karisa Chengo (2017) eKLR, held:-
12.Further, in Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others (2012) eKLR, the Supreme Court held that:-
13.The Work Injury Benefits Act No. 13 of 2007 (hereinafter referred to as WIBA) is defined as an Act of Parliament that provides for compensation to employees for work related injuries and diseases contracted in the course of their employment.
14.The Act states that the compensation for injuries sustained by a person in the course of their employment shall be done in accordance to the provisions of the Act. Section 16 of the WIBA provides: -
15.The Act also provides the procedure for obtaining compensation in the event of a work related injury or death. Section 21 of the WIBA provides: -
16.Section 22 of the WIBA provides: -(1)Subject to the provisions of this section, an employer shall report an accident to the Director in the prescribed manner within seven days after having received notice of an accident or having learned that an employee has been injured in an accident.(2)For the purposes of this section, an accident includes any injury reported by an employee, to his employer, if the employee when reporting the injury, alleges that it arose out of and in the course of his employment and irrespective of the fact that the employer is of the opinion that the alleged accident did not so arise out of and in the course of employment…………..
17.Section 23 of the WIBA provides: -(1)After having received notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with this Act.(2)An inquiry made under subsection (1) may be conducted concurrently with any other investigation.(3)An employer or employee shall, at the request of the Director, furnish such further particulars regarding the accident as the Director may require………….
18.Section 26 of the WIBA provides that: -(1)A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within twelve months after the date of the accident or, in the case of death, within twelve months after the date of death.(2)If a claim for compensation is not lodged in accordance with subsection (1), the claim for compensation may not be considered under this Act, except where the accident concerned has been reported in accordance with section 21.(3)If an employer fails to report an accident or to provide information requested by the Director as specified in the request, the Director may—(a)conduct an investigation and recover the cost of the investigation from the employer as a debt due from the employer; or(b)levy a penalty on the employer.(4)An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim.(5)The Director shall, within thirty days of receipt of the money claimed under subsection (1), pay the money to the employee who made the claim or his dependants………….
19.Section 51 of the WIBA provides: -(1)Any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.(2)The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined.
20.Section 52 of the WIBA provides: -1)The Director shall within fourteen days after the receipt of an objection in the prescribed form, give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision.(2)An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision.
21.From the above illustration, it is clear that the Work Injury Benefits Act No. 13 of 2007 lays out an elaborate procedure by which a compensation claim can be pursued. The Director of Occupational Safety and Health Services is empowered to determine such claims and award compensation. An aggrieved party has the right of appeal against the Director’s decision by lodging an objection with the Director. A court of law only comes in when an aggrieved party is dissatisfied by the decision of the objection by Director of Occupational Safety and Health Services.
22.The same was aptly captured by the Supreme Court in Law Society of Kenya vs Attorney General & another (2019) eKLR, where it held:-
23.The provisions of the Work Injury Benefits Act No.13 of 2007 and the decision in Law Society of Kenya v Attorney General & another (supra) are quite clear that the process of compensation of work relate injuries are to be followed as provided for in the Act.
24.In the final analysis, there is no evidence to suggest that this matter came before this court as a constitutional claim. Indeed, the case has been introduced by way of Plaint implying original jurisdiction. Such jurisdiction, it at all would rightly belong to the Employment and Labour Relations Court. It is my very clear finding that this court has no jurisdiction to hear and determine this matter and I accordingly down my tools.
25.In the end, I uphold the Preliminary Objection dated 28th November 2022. The Plaintiff’s suit is accordingly struck out. I exercise discretion not to punish the Plaintiff with costs for the misdirection of his Counsel.