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BAILII · Verbatim mirror
the Practice Directions did not mention the common law, neither did it mention WIBA. A
claimed filed in court during the relevant period would be a court claim at common law
because a number of provisions in WIBA were a nullity at that point. Dr Muli did not think
that it was the Chief Justice's intention that a court claim at common law filed during the
period set out in paragraph 7 of the Practice Directions would be converted into a court
claim which applied WIBA. Rather, the Chief Justice's intention was that a court claim at
common law filed during the period set out in paragraph 7 of the Practice Directions would
continue at common law. In doing so the Chief Justice was not subverting the decision of
the Supreme Court because paragraph 7 of the Practice Directions made clear that it was
restricted to the time period set out in that paragraph. A court determining a court claim
filed during that period could not determine a work related injury claim in accordance with
WIBA. WIBA did not give the courts power to do so and there was no authority that
supported such an approach. In terms of WIBA, only the DOSH could investigate and
determine a claim according to the WIBA tariffs and the ELRC could only become involved
at the appeal stage. When the state of confusion existed, namely post the decision of the
Supreme Court and prior to the issue of the Practice Directions, the courts that had
considered that WIBA applied did not themselves apply WIBA, but rather removed the
cases from the court.
29
[16]
In the ELRC case (sitting as an appeal court) of Chenje it was accepted, at
paragraph 30, that the ELRC had used the phrases "WIBA practice directions", "WIBA cases
filed in Court" and "WIBA matters". However, these phrases appeared to be just matters
of expression and it was clear from paragraph 5 of the judgment that the plaintiff had filed
a claim in the Magistrates' court for general damages at common law in 2016. Further, it
was also clear that the ELRC held that: (i) the Magistrate had erred in his judgement of
19 October 2022 in holding that the Magistrates' court did not have jurisdiction; (ii) the
Magistrates' court did have jurisdiction; and (iii) the case should be returned to the
Magistrates' court for disposal in relation to the issues of liability and quantum. Therefore,
the ELRC had clearly returned the case to the Magistrates' court to deal with liability and
quantum at common law. The ELRC had not sent the case back to the Magistrates' court
to deal with it under WIBA because that court had no power to do so and if the ELRC had
taken such a course (which it had not), liability would not have been an issue because WIBA
was a no-fault system.
[17]
It was accepted what was said at paragraph 38 in the ELRC case (sitting as an appeal
court) of West Kenya Sugar Co Ltd v Libuyi (paragraph 38 to 40 of that case is set out at
paragraph 88 below). However, the decision of the ELRC was delivered on 17 November
2022, which was before the Practice Directions were issued. Further, the decision of ELRC
makes clear that what the ELRC held was that the Magistrates' court had no jurisdiction to
hear and determine work injury related claims filed after the commencement of WIBA and
that such a claim therefore had to go to the DOSH.
[18]
The ELRC case (sitting as an appeal court) of West Kenya Sugar Co Ltd v Nyongesa was
determined after the Practice Directions were issued. Whilst it was accepted that the court
30
had again, at paragraph 31, used phrases "WIBA practice directions", "WIBA cases" and
"WIBA matters", the court held at paragraph 32 that:
"The answer on issue of jurisdiction then is that pursuant to the Chief Justice and
President of the Supreme Court Practice Directions Vide Gazette Notice No. 5476
issued on the 28th April 2023 [sic] relating to pending Court claims regarding
compensation for work related injuries and diseases instituted prior to the
Supreme Court decision in Law Society of Kenya v Attorney General And
Another, Petition No. 4 Of 2019; [2019] e KLR, the magistrates courts are now
clothed with jurisdiction in work related injuries and disease claims pending in
court before the delivery of the Supreme Court decision in Law Society of Kenya
Vs. Attorney General And Another, Petition No. 4 Of 2019 on 3rd December 2019."
Dr Muli noted that the claim in Nygonesa was filed as a common claim in Magistrates' court
and rejected a suggestion that the decision of ELRC meant that the Magistrates' court were
now clothed with jurisdiction to determine the claim under WIBA.
[19]
Dr Muli accepted that: (i) WIBA removed the need for lawyers and fees; (ii) the
DOSH had a discretion in relation to the 12 month time bar; (iii) a judge could direct that
a case went to DOSH; (iv) under WIBA the employee still required to satisfy the DOSH
that they were: (a) an employee; (b) injured during their employment; and (c) within the
12 month time bar; and (v) that if an appeal to the ELRC under section 52(2) of WIBA was
made against the decision of the DOSH, the ELRC would be able to consider, amongst other
things, whether the DOSH had applied the WIBA tariffs correctly. Dr Muli did not consider
that WIBA had replaced the common law. The common law applied to claims when WIBA
did not apply.
[20]
Dr Muli's opinion was that if a court claim at common law was filed in the
Magistrates' court in Kenya in 2017, prior to the decision of the Court of Appeal, it would,
following the issue of the Practice Directions, continue to be heard in the Magistrates' court
and the Magistrate would determine liability and quantum on the basis of the common law.
31
Mr Nyairo's evidence
[21]
Mr Nyairo has been an Advocate of the High Court of Kenya since 1984. He is
currently the Managing Partner of Nyairo and Company Advocates. He has trained
over 60 graduate pupils over the last 35 years and had over 40 years' experience in court
litigation. He had experience of conducting cases in the Magistrates' court, the High court,
the Court of Appeal and the Supreme Court. He had a number of areas of specialism, which
included personal injury claims. It was normal in Kenya for an Advocate to have a number
of areas of specialism. Whilst he had not listed constitutional law as an area of specialism,
he regularly considered and applied the Constitution when it related to the areas that he
specialised in. He had dealt with many work related injury cases and had acted for both
employers and employees. Since 1985 he had dealt with claims by workers employed to
work on tea estates.
[22]
Mr Nyairo adopted his report of 11 April 2025. He spoke to the legal background
already referred to. Prior to WIBA Mr Nyairo had dealt with both WCA claims and court
claims at common law. A WCA claim was quicker to conclude, but a court claim at common
law could result in award of damages that would be in region of five to ten times higher
than a WCA claim. Under WIBA, accidents required to be reported to the DOSH who then
required to make such inquiries as were necessary to decide any claim. The DOSH was an
office within the executive. Advocates would not get involved with an accident reported
to the DOSH. WIBA did not make any provision for the instruction of Advocates. There
was no provision in WIBA that permitted court involvement at first instance. There was no
provision in WIBA that gave the court the power to investigate a claim and apply the tariffs
in WIBA. WIBA only permitted court involvement on appeal.
32
[23]
The superior courts were the High Court, the Court of Appeal and the Supreme
Court. The Supreme Court was the apex court in Kenya and its decisions were binding on
all lower courts. A decision of the Court of Appeal was binding on lower courts. A decision
made at a particular level of court holds until it is reversed.
[24]
The interim ruling of the High Court of 22 May 2008 occurred before WIBA came
into force and meant that court claims at common law could continue to be filed and that
is what happened in practice. The decision of the High Court of 4 March 2009 nullified
sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2) and 58(2) of WIBA.
As section 22 of WIBA had not been declared null, reports of an accident could still be
made to DOSH, but the claim could not be progressed because section 23(1) of WIBA had
been declared null and the DOSH, therefore, had no power to make such inquiries as
were necessary to decide upon any claim. During the relevant period reports were made
to DOSH about accidents that had occurred during that period, but these could not be
progressed. The decision of the High Court of 4 March 2009 did not declare section 57 null,
therefore the WCA remained repealed. The decision of the High Court of 4 March 2009 was
not stayed and was very clear. Following on from the decision of the High Court workers
could still seek compensation for injuries sustained in a workplace accident by way of a
court claim at common law.
[25]
The decision of the Court of Appeal of 17 November 2017 resulted in uncertainty
due to observations made in the judgment about legitimate expectations of those who had
already filed work injury claims pre-WIBA to have those claims concluded under the legal
regime they had invoked, even though the WCA had been repealed. Following on from the
decision of the Court of Appeal, some courts held that cases filed in court during the
relevant period could continue, while other courts took the view that as a result of section 16
33
of WIBA being restored, that they had no jurisdiction to hear cases filed during the relevant
period and that those cases had to go to the DOSH. At that time Mr Nyairo took the later
view.
[26]
The decision of the Supreme Court of 3 December 2019 did not clear up the
uncertainty. The decision of the Supreme Court upheld the Court of Appeal finding that
parties who had filed work injury claims pre-WIBA had a legitimate expectation that such
claims would be concluded under the legal regime they had invoked, which was the
common law and/or the WCA. However, the decision of the Supreme Court did not give
directions as regards what was to happen to court claims at common law filed between the
decision of the High Court and the decision of the Supreme Court. Following upon the
decision of Supreme Court there were three trends that emerged in respect of those cases.
(1) Some judges took the view that they no longer had jurisdiction to hear cases
in court and dismissed the court claim;
(2) Some judges took the view that the court cases could continue on the basis
of legitimate expectation and dealt with cases under the common law; and
(3) Some judges refused to make any orders and returned the case to the registries
to await directions.
If court cases were dismissed, on the basis of lack of jurisdiction, the claimant potentially
faced the challenge of being beyond the 12 month time bar in WIBA and WIBA did not have
a provision for the extension of the 12 month period. Court claims in tort had a 3 year
limitation period, which could be extended in certain circumstances.
[27]
Practice Directions were issued by the Chief Justice under powers derived from the
Constitution and other statutes and had the force of law. They were to ensure that the court
system operated efficiently and to clear up any mishaps in the court system. Mr Nyairo
34
thought that Practice Directions dealing with an issue regarding the efficient operation of
the court could help with connected constitutional issues. The Chief Justice is obliged to
ensure access to justice. The Practice Directions, dated 24 April 2023, were promulgated by
the Chief Justice to address the confusion that had arisen in relation to court claims filed
from the commencement of WIBA and before the decision of the Supreme Court. Mr Nyairo
did not consider that the Chief Justice would issue a Practice Direction that said a decision
of the Supreme Court was wrong. The Practice Directions caused Mr Nyairo to change his
view about the approach to cases in that period. The Practice Directions made clear that:
(1) Claims filed before WIBA came into force were to continue under the
repealed WCA;
(2) Claims filed after the commencement of WIBA and before the decision of
the Supreme Court were to be pursued until conclusion in the ELRC or
Magistrates' court; and
(3) Claims after the decision of the Supreme Court were to be submitted to
DOSH and appeals from a decision of the DOSH were to be filed in the
ELRC.
[28]
Mr Nyairo considered that the different language used between paragraph 5 and 7
of the Practice Directions was due to them dealing with different sets of persons.
Paragraph 5 was dealing with persons who had filed claims before WIBA came in to force
and paragraph 7 was dealing with persons who had filed claims during the period set out
at point (2) above. Paragraph 6 of the Practice Directions was contentious because the
Supreme Court referred to the judicial process invoked, which was mainly the common law
and the WCA, but paragraph 6 only mentioned the WCA and did not mention the common
law. Paragraph 7 of the Practice Directions stated that the decision of the High Court
35
created a legitimate expectation that claims could be lodged in court and made reference
to the Supreme Court decision of Ndii, which considered the principle of legitimate
expectation and held that if a person relied on a law to lodge a claim in court, they could
not be penalised if that law was later nullified. Mr Nyairo considered that it would be a
narrow approach to say that paragraph 7 of the Practice Directions was dealing with only
with jurisdiction, rather than both jurisdiction and the law to be applied. Mr Nyairo's
opinion was that such claims would continue to follow court procedure and that, in terms
of paragraph 7 of the Practice Directions, that court claims at common law filed during the
period set at point (2) above would continue as court claims at common law. The Practice
Directions did not contradict the decision of the Supreme Court because its decision did not
deal with cases in that time period.
[29]
Mr Nyairo explained that since the issue of the Practice Directions there had been
a settled and uniformed approach to work injury claims. The courts have in practice
continued to deal with court claims at common law made during the period set out in
point (2) above as court claims at common law. The courts have also revived cases filed
during that period that were previously struck out for a want of jurisdiction. Indeed,
Mr Nyairo had acted in cases for employers and had succeeded in having them struck out
for a want of jurisdiction prior to the issue of the Practice Directions, but had, since the issue
of the Practice Directions, consented, on behalf of the employer, to those cases being revived
in court. Those cases had then proceeded as court claims at common law. Mr Nyairo had
searched the case reports and had not been able to find any cases where a claim, which had
been made during the period set out in point (2) above, had continued to be dealt with
in court following the issue of the Practice Directions, but had applied WIBA to assess
damages. Mr Nyairo noted that there will come a point when all the court claims at
36
common law filed during the period set out in point (2) above are dealt with and then all
work injury claims will be dealt with in terms of WIBA.
[30]
In the ELRC case (sitting as an appeal court) of Chenje it was clear from paragraph 5
of the judgment that the plaintiff had filed a claim in the Magistrates' court for general
damages at common law in 2016. It was also clear that the ELRC held that: (i) the
Magistrate had erred in his judgement of 19 October 2022 in holding that the Magistrates'
court did not have jurisdiction; (ii) the Magistrates' court did have jurisdiction; and
(iii) the case should be returned to the Magistrates' court for disposal in relation to the issues
of liability and quantum. This case did not support the use of WIBA tariffs by the court.
[31]
The case of Boniface Onyango was indicative of how courts are approaching court
claims filed during the relevant period. In that case the claim was filed in 2016 as court
claim at common law. The decision of the Magistrates' court was issued on 27 June 2024
and it was clear from judgment that fault and quantum were determined according to the
common law.
[32]
In the ELRC case (sitting as an appeal court) of Rok Industries Limited the claim was
filed in April 2017 and the employer appealed against the decision in the Magistrates' court,
which held that it had jurisdiction to determine the claim. The ELRC, in a judgment issued
on 14 March 2024, held, after making reference to the Practice Directions, that the
Magistrates' court did have jurisdiction to entertain the claim and dismissed the appeal.
[33]
In the ELRC case (sitting as an appeal court) of Zhongmei Engineering Group Ltd a
court claim at common law was filed on 21 February 2017. Parties entered into a consent on
liability at the ratio of 25/75 in favour of the employee. The claim proceeded to a hearing
on quantum of damages and in a judgment delivered on 15 December 2021 the Principal
Magistrate awarded the employee common law damages. The employer lodged an appeal
37
contending, amongst other things, that the Magistrates' court had no jurisdiction and that
the damages awarded were excessive. The ELRC, in a judgment issued on 17 May 2023,
held, after making reference to the Practice Directions, that the Magistrates' court did have
jurisdiction and that damages awarded at common law were not excessive.
[34]
In the case of Isaac a court claim at common law was filed on 25 September 2017. The
court claim also alleged breach of contract and breach of statutory duties. In a judgment of
10 September 2024 the Senior Principal Magistrate found that the defendants were liable by
reason of negligence and/or breach of duty and awarded damages at common law.
[35]
In the ELRC case (sitting as an appeal court) of Jumbo North (EA) Limited v Kiplimo a
court claim was filed on 26 May 2017. The employer then made an application for a stay of
the proceedings on the basis that the Magistrates' court had erred in determining that that
court had jurisdiction to determine the claim. The ELRC, in a judgment issued on 28 June
2024, held, after making reference to the Practice Directions, that the Magistrates' court did
have jurisdiction to entertain the claim and dismissed the application.
[36]
In the ELRC case (sitting as an appeal court) of West Kenya Sugar Co Ltd v Tangale
the claim was filed on 8 June 2017 and the employer appealed against the decision in the
Magistrates' court, which held that it had jurisdiction to determine the claim. The ELRC, in
a judgment issued on 23 March 2021, which was prior to the issue of the Practice Directions,
applied the doctrine of legitimate expectation and held that the Magistrates' court did have
jurisdiction to entertain the claim and dismissed the appeal.
[37]
In the ELRC case (sitting as an appeal court) case of Mugatsia v Protective Custody
Services the employee filed what appeared to be a court claim at common law on 9 May 2017.
The Magistrates' court held that it had no jurisdiction to hear the claim. The employee
appealed and the ELRC, in a judgment issued on 25 January 2024, noted that the employer
38
disputed the claim, which suggested that liability was disputed and held, after making
reference to the Practice Directions, that the Magistrates' court did have jurisdiction and
allowed the appeal. Whilst the ELRC had used the phrase "WIBA claims" at paragraph 21
of the judgment, that appeared to be the terminology used and ought not to be read that
WIBA ought to be applied by the Magistrates' court.
[38]
There was no provision in WIBA allowing a court to remit a case to the DOSH. In
the ELRC case of Mohammed v Freedom Airline Express Limited (Miscellaneous Application
No E156 of 2021) the court did not transfer the case to the DOSH but rather extended the
time to report the accident to the DOSH. In ELRC case of Kamande and Muigai v Ace Freight
Limited [2022] KEELRC 1275 (KLR) the court did refer a case to the DOSH, but there was not
any provision in WIBA allowing a court to do so. Both the said cases had been decided prior
to the issue of the Practice Directions.
[39]
Mr Nyairo's opinion was that if a court claim at common law was filed in the Kenyan
Courts in May 2017 it would: (i) if concluded prior to decision of the Court of Appeal, have
been dealt as a court claim at common law; (ii) if not currently concluded, continue to be
dealt with in the court as a court claim at common law.
Professor Muigai's evidence
[40]
Prof Muigai is an academic who specialises in public law, public international law
and constitutional law. He is also a Senior Partner at Mohammed Muigai LLP and an
Advocate of the High Court of Kenya. He is an expert in the constitutional law of Kenya.
His doctorate was in constitutional law. Between 2000 and 2005 he was a Commissioner
of the Constitution of Kenya Review Commission. He was one of the draft persons of the
2010 Constitution. Between August 2011 and February 2018, he served as the Attorney
39
General of the Republic of Kenya. He has written extensively on the constitutional law
of Kenya, including a recent book in 2022 entitled "Power, Politics and Law".
[41]
Prof Muigai adopted his report of 14 April 2025 and his supplementary report of
2 May 2025. Prof Muigai again spoke to the legal background already referred to and
explained the hierarchy of laws of Kenya under reference to section 3(1) of the Judicature
Act (on which see finding in fact 5). The Constitution stood at the apex. There then
followed written laws, then adopted laws, which was usually the law of England. The
common law of England and the doctrines of equity were at the bottom of the food chain.
The common law of England applied when it did not contradict any written law which was
in force in Kenya. The High Court, Court of Appeal or Supreme Court could not revive a
repealed statute. That was an important constitutional principle. In interpreting statutes,
the Kenyan courts have adopted the common law tradition on statutory interpretation as
an exercise aimed at fulfilling the intention of legislators. The marginal note to a section of
WIBA was an aid to interpretation.
[42]
It was important to recognise that the Supreme Court had a narrow and special
jurisdiction. It can deal with appeals from the Court of Appeal in a case involving a
question on the Constitution as of right. It can also deal with appeals from the Court of
Appeal in any case which the Court of Appeal or Supreme Court has certified that a matter
of general public importance is involved. Everybody was bound by the Supreme Court's
interpretation of the law. The Supreme Court was infallible on the Constitution unless it
reversed itself. Decisions of the ELRC (sitting as an appeal court) were binding on the
Magistrates' court.
[43]
The decision of the High Court of 4 March 2009 was unprecedented and amounted to
judicial overreach. It resurrected a law that Parliament had killed. It was accepted that the
40
decision of the High Court nullified a number of provisions of WIBA, including section 16
and that the decision of the High Court was not stayed. That decision meant that cases
could still be reported to the DOSH, but the DOSH had been stripped of his powers to
investigate and therefore could not do much to progress a claim. The consequences of the
decision of the High Court of 4 March 2009 were threefold:
(1) The exclusive original jurisdiction of the DOSH was deemed to be repealed.
As such, claimants could pursuer their claims through the DOSH or the
courts, as the jurisdiction was now to be concurrent;
(2) The definition of an employer and the implied duties of the employer
provided by section 4 and 10(4) of WIBA (which were declared
unconstitutional) had to be ascertained by reference to other statutes and
regulations; and
(3) The operational provisions of WIBA relating to the quantification of
compensation for injuries sustained at work continued to subsist irrespective
of whether a claim was filed before the DOSH or the courts. Section 10(1)
to (3), that provided for the statutory basis for claiming compensation and
section 28 to 44 and the first schedule to the third schedule to WIBA, that
governed the mechanism for computing compensation, remained
undisturbed by the declaration of unconstitutionality by the High Court of
sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2)
and 58(2) of WIBA.
Prof Muigai accepted that during the relevant period: (i) the law was presumed to be as
pronounced by the decision of the High Court; and (ii) workers were entitled to file and did
file court claims at common law.
41
[44]
The decision of both the Court of Appeal and Supreme Court held that WIBA (save
for sections 7 and 10(4) of WIBA) had always been good law. That was the first stop and
one could not jump over WIBA to the common law. The decision of the Supreme Court
must be read alongside section 58(2) of WIBA. The part of Court of Appeal decision quoted
at finding in fact 17 above was dealing with cases filed in court before the commencement
of WIBA. In relation to those cases the reference to a legitimate expectation was only to
do with forum and not the substantive law. The decision of the Supreme Court as regards
legitimate expectation in relation to such cases was also in relation to forum only. Neither
the Court of Appeal nor the Supreme Court said what law was to govern those cases that
had been filed in court before the commencement of WIBA. It was accepted that neither
the Court of Appeal nor Supreme Court gave guidance as regards what was to happen to
court claims filed during the relevant period. It was also accepted that following on from
the decision of the Supreme Court there was confusion as regards whether the courts had
jurisdiction to hear cases filed during the relevant period and that a number of cases were
decided in different directions.
[45]
The Chief Justice was not acting in a judicial capacity when issuing a Practice
Direction, rather he was acting in an administrative capacity. Practice Directions were not
law, rather, they were directions. They are intended to make matters more efficient, more
convenient and more responsive for court users. They are intended to guide the application
of the existing law. Practice Directions are habitually observed when no controversy arises
in relation to the subject matter of the Practice Direction.
[46]
The Practice Directions, dated 27 July 2011 (see finding in fact 14), were written in
the traditional lean style of a Practice Direction. By contrast the Practice Directions, dated
24 April 2023, were not in the normal tradition of a Practice Direction and it may have
42
created a bit of confusion. It would be a total error to suggest that the Practice Directions,
dated 24 April 2023, were a source of law. It was never the intention of the Constitution that
the Chief Justice, in the exercise of an administrative function, could create a new course
of action or abolish existing courses of action. Practice Directions could not change the
substantive law. Prof Muigai explained that it was possible to judicially review a Practice
Direction.
[47]
The Chief Justice issued the Practice Directions, dated 24 April 2023, in an attempt
to resolve the confusion that had arisen. The Practice Directions contained argument and
Prof Muigai had never seen a Practice Direction written in such a manner before. It was
accepted, in terms of paragraph 7 of Practice Directions, that all claims for work related
injuries and diseases filed after the commencement of WIBA and before the Supreme Court
decision shall proceed to conclusion in court. That paragraph recognised a legitimate
expectation on the appropriate forum to determine those court claims. Paragraph 7 of the
Practice Directions did not say what substantive law was to be applied to those court claims
and a claimant could not: (i) have a legitimate expectation that was contrary to the law; or
(ii) expect what the law had taken away. The use of "work related injuries and diseases",
in paragraph 7, was language that would be used in a Kenyan statute. Paragraph 7 of the
Practice Directions could not override WIBA and therefore the applicable framework for
quantification of the claim and the substantive law was WIBA. The Practice Directions
served to set out the effect of the litigation before the Kenyan courts as follows:
(1) All claims relating to workplace related injuries filed prior to 2 June 2008 are
to be determined under the legal framework set out in the WCA (repealed);
43
(2) All claims filed from 2 June 2008 to 4 March 2009 are to be determined
exclusively and solely under the legal framework provided by WIBA;
(3) All claims filed from 5 March 2009 to 3 December 2019 when parts of WIBA
had been declared unconstitutional were to be determined under the forum
that the claimant had filed their claim (whether DOSH or the courts), the
contractual provisions of the employment contracts between the respective
employers and employees, the WIBA provisions on the computation of
compensation and principles of common law on interpretation of
employment contracts; and
(4) All claims filed from 4 December 2019 to date are to be resolved through
the exclusive legal framework set out under WIBA. This meant the claims
should be filed before the DOSH in accordance with WIBA.
Prof Muigai accepted that the Practice Directions, dated 24 April 2023, had not been
challenged.
[48]
In respect of the pursuer's claim filed in 2017 it was Prof Muigai's view that whilst
the exclusive mechanism for the resolution of claims by the DOSH had temporarily been
rendered unconstitutional, a claimant was at liberty to file a claim either before the DOSH
or the courts, since they both enjoyed concurrent jurisdiction to hear WIBA claims, with
the governing law to resolve the substance of the work injury claims still being WIBA.
Prof Muigai drew support for his opinion from the following:
(1) First, upon coming into force of WIBA on 2 June 2008, the WCA was repealed
by section 57 and 58(2) of WIBA. As such, unless the entirety of WIBA had
been invalidated, any claim lodged after 2 June 2008 could not seek to rely on
the WCA.
44
(2) Second, the High Court only declared specific provisions of WIBA
unconstitutional while the remainder of WIBA remained the governing
framework. Such a position was encapsulated by the ELRC (sitting as an
appeal court) in Heritage Insurance Company Limited v Joshua and another [2021]
KEELRC 1634 (KLR) in passage set out in paragraph 87 below (Prof Muigai
accepted that this decision was made prior to the Practice Directions being
issued). Among the sections declared unconstitutional was section 16 of
WIBA, which had granted exclusive original jurisdiction to the DOSH. It
was crucial to note that this declaration only affected where the claim could
be lodged and not what law would govern the claim. The declaration of
section 16 as being unconstitutional removed the exclusive jurisdiction of
DOSH to hear claims arising from work injury. This therefore meant that
prospective claimants were free to approach either DOSH or the courts,
with WIBA being the governing framework on the quantum of damages.
(3) Thirdly, section 12 of the Employment and Labour Relations Court Act 2011
expressly provided that the ELRC shall have exclusive original and appellant
jurisdiction to hear and determine all disputes referred to it in accordance
with Article 162(2) of the Constitution.
(4) Fourthly, section 29(3) and (4) of the 2011 Act provides that the Chief Justice
could appoint Magistrates to hear and determine employment related
disputes. Therefore, the Employment and Labour Relations Division within
the Magistrates' court had jurisdiction to hear claims arising from work
injury. This was affirmed in the case of Abyssina Iron & Steel Limited v Ondara,
Civil Appeal No 1 of 2014.
45
[49]
The contention that WIBA does not apply to court claims filed after the decision of
the High Court of 4 March 2009 and before the decision of the Supreme Court was wrong
on two grounds. First, it appeared to be presumed that the entirety of WIBA was declared
unconstitutional by the High Court when instead only some provisions of WIBA were
declared unconstitutional. The parts of WIBA that dealt with the framework for the
quantification of loss under the first to third schedule of WIBA were not challenged.
Secondly, it appeared that it had not been appreciated that the WCA was repealed and
could not in any circumstances be relied upon. Once an Act had been repealed, even if
the successor Act was found unconstitutional, the preceding Act was not deemed to be
resuscitated. As such, the applicable law on the quantification of damages for work injury
claims that arose or were filed post 2 June 2008, whether before the DOSH or the courts, is
and was always WIBA. Section 58(2) of WIBA made this clear. The common law could not
apply to such claims under the hierarchy of laws because a clear statutory scheme existed
in the form of WIBA. Section 10 and 16 of WIBA categorically provides that the right to
compensation for disablement or death of an employee arising from an accident was solely
limited to the provisions of WIBA. As such, section 16 of WIBA excluded common law
remedies for all claims arising after 2008.
[50]
Prof Muigai accepted that he had not seen any cases where the courts had applied
WIBA, but noted that that does means that such cases did not exist. If the courts were
dealing court claims filed during the relevant period as court claims at common law, they
were wrong to do so. The case of Libuyi supported Prof Muigai's approach and was the
most persuasive authority on the applicable substantive and procedural law between 2008
and 2019 when the Supreme Court decision was issued. It was, however, accepted that that
case was decided prior to the Practice Directions being issued. There was no difference to
46
the substantive law pre or post the issue of the Practice Directions. It was accepted that the
case of Nyongesa was decided, after the Practice Directions were issued, by the same judge
as decided the case of Libuyi, but in Nyongesa the judge reached a different decision and sent
the case back to Magistrate to deal with the case. However, it was not open to the Chief
Justice to dictate any other law other than WIBA. Prof Muigai considered that the decisions
in the cases of Boniface Onyango and Zhongmei Engineering Group Ltd were outlier decisions.
Prof Muigai's opinion was that the present actions would fall to be determined by the
application of WIBA only.
[51]
Whilst there was no express power in WIBA for a judge to remit a case to the DOSH,
there may be an inherent power for a judge to do so. In the ELRC (sitting as an appeal
court) case of Bloomingdale Roses (K) Ltd v Nteere, Civil Appeal No 1 of 2018, the judgment was
issued 8 November 2018 and was therefore after the decision of the Court of Appeal and
before the issue of the Practice Directions. In that case the judge referred the case to DOSH.
[52]
Prof Muigai did not dispute Mr Nyairo's experience, as a practitioner, as regards
what was happening in the lower courts with work injury related cases: (i) after the decision
of the Court of Appeal and before the issue of the Practice Directions; and (ii) after the issue
of the Practice Directions.
Submissions
[53]
A 36 page written submission was lodged on behalf of the pursuer and a 17 page
written submission was lodged on behalf of the defender. Both parties also made additional
oral submissions. What follows is a summary of the submission made by the parties.
47
Submissions for the pursuer
[54]
The court should find that the applicable Kenyan law that this court should apply,
in respect of both liability and quantum, is the common law of Kenya and restore the case
to the adjustment roll. It was important to note that the actions in the Inner House case of
Campbell v James Finlay (Kenya) Ltd 2023 SLT 1364 were all raised after the Supreme Court
decision. The present actions were quite distinct from those dealt with in the Inner House
because they were all raised on 9 May 2017, within the relevant period. It was accepted that
the task this court faced was to decide what the Supreme Court of Kenya would decide if the
point were to come to it (see Perry and Another v Lopag Trust Reg And Another No 2 (Cayman
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