Techno-Plast Limited v Wafula (Appeal 13 of 2024) [2025] KEELRC 2767 (KLR) (13 October 2025) (Judgment)
Neutral citation:
[2025] KEELRC 2767 (KLR)
Republic of Kenya
Appeal 13 of 2024
NJ Abuodha, J
October 13, 2025
(FORMERLY MILIMANI CIVIL APPEAL NO. E308 OF 2020)
Between
Techno-Plast Limited
Appellant
and
Christoper Barasa Wafula
Respondent
(Being an appeal from the Ruling of Hon. E. Wanjala (Ms) Senior Resident Magistrate delivered on 3rd September 2020 in respect of the Appellant’s Notice of Motion Application dated 6th February 2020 filed in CMCC 10221 OF 2018 before the Chief Magistrates Court Milimani Commercial Courts, Nairobi)
Judgment
1.Through the Memorandum of Appeal dated 19th November 2020, the Appellant appeals against the Ruling delivered by Honourable E. Wanjala (Ms) Senior Resident Magistrate.
2.The Appeal was based on the grounds that:i.The Learned Magistrate erred in both fact and law by failing to appreciate that section 16 as read with Section 23 (1) of the Work Injury Benefits Act 2007 confers powers of adjudication of any claim for compensation arising from injury or death in the workplace upon the Director of Occupational Safety and expressly bars institution of court proceedings by the aggrieved employee.ii.The Learned Magistrate erred in both fact and law by misinterpreting the principle of legitimate expectation and holding that it applied to all claims that were already filed before the Magistrates court.iii.The Learned Magistrate erred in both law and fact by disregarding the fact that two superior courts i.e the Court of Appeal in Civil Appeal No.133 of 2011 and Supreme Court in Petition No.4 of 2019 were clear that the principle of legitimate expectation in work injury claims applied to the matters that were pending in court prior to the enactment of the Work Injury Benefits Act 2007.iv.The Learned Magistrate erred in both law and fact by holding that the Magistrates Court has jurisdiction to hear and determine work injury claims.v.The Learned Magistrate erred in both law and fact by basing her ruling on irrelevant considerations.
3.The Appellant prayed that the subordinate court’s ruling of 3rd September be set aside as a whole and substituted with an order allowing the Appellant’s application dated 6th February 2020 in its entirety and therefore striking out the Plaint and the suit in its entirety with costs of both the Appeal and the lower court proceedings.
4.The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
5.The Appellant’s Advocates Muchui & Co. Advocates filed written submissions dated 11th February 2025. Counsel relied on the case of Mbogo v Shah [1968] EA page 93, on when a superior court will interfere with the decision of the inferior court. Counsel further submitted that the appeal arose from work injury that occurred on 7th March,2018. That the Appellant filed a notice of motion dated 6th February,2020 seeking to strike out the plaint for the reasons that the magistrate lacked jurisdiction to hear work injury matters after enactment of the WIBA which was enacted in 2007 and come to effect in 2008 hence the matter filed 10 years after the Act came into force.
6.On the issue of whether the court had jurisdiction, counsel submitted that while this appeal was pending hearing and determination, the Hon. Chief Justice published in the Kenya Gazette notice No.5477 some practice directions relating to pending court claims for compensation for work related injuries.
7.Counsel submitted that the net effect of this gazette notice was ‘conferring jurisdiction’ upon Magistrate courts however, with great deference to the Hon. Chief Justice, it is trite that jurisdiction is donated to the courts by the Constitution and/or the statute which created them.
8.Counsel relied on the Supreme Court’s decision in the matter of Interim Independent Electoral Commission [2011] eKLR to submit that in any litigation, jurisdiction is central and a court of law cannot validly take any step without jurisdiction. The Supreme Court in its determination relied on the Court of Appeal case of Owner of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR1, which establishes that jurisdiction flows from the law and the recipient court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the crafty of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.
9.Counsel relied on the Supreme Court Petition No. 33 of 2018, Sammy Ndungu Waity vs I.E.B.C and 3 others [2019] eKLR among other cases to submit that where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate and in a case where a statute confers exclusive jurisdiction on the relevant body to determine the relevant matter, the body must act under the statute and not outside it.
10.On the issue of whether the Learned Magistrate erred by failing to appreciate that section 16 as read with Section 23 (1) of the Work Injury Benefits Act 2007 confers powers of adjudication of any claim for compensation arising from injury or death in the workplace upon the Director of Occupational Safety and expressly bars institution of court proceedings by the aggrieved employee, counsel relied on the Work Injuries Act part IV to submit that the Director of Occupational Safety has sole and exclusive jurisdiction in all claims arising of injuries sustained in the workplace.
11.Counsel relied on among other cases, the matter in Petition No.4 of 2019; Law Society of Kenya v Attorney General & another [2019] eKLR to submit that under the WIBA, sections 16, 23(1) and 52, an employee is subjected initially to a process of dispute resolution starting with an investigation and award by the Director and thereafter an appeal mechanism to the then Industrial Court hence at no point was a claimant or his dependant allowed to approach the court under common law or otherwise.
12.Counsel relied on among other cases, the case of The Speaker of the National Assembly v Karume (2008) to submit that the courts must exercise restraint and first give an opportunity to the relevant bodies or state organs to deal with the dispute as provided in the relevant statute and that if the court acts without jurisdiction, the proceedings are a nullity.
13.Counsel relied on the case of Narok County Council v Trans Mara County Council and another, Civil Appeal No.25 of 2000 to submit that where the law provides for procedure to be followed, the parties are bound to follow the procedure provided by the law before the parties can resort to a court of law as the court would have no jurisdiction to entertain the dispute.
14.On the issue of whether there is a legitimate expectation owed to the respondent, counsel relied on the case of color Label Limited v Walubengo [2024] KEHC 3964 (KLR) among others to submit that legitimate expectation applies to only those suits that had been commenced on the basis of either the Workmen’s Compensation Act, or of the common law, or a combination of both regimes of laws, prior to the enactment of the Work Injury Benefits Act 2007.
15.Counsel submitted that the Respondent cannot hide under the doctrine of legitimate expectation for the reasons that the suit was filed over 10 years after the enactment of the Work Injury Benefits Act 2007, both the Supreme Court and Court of Appeal have held that legitimate expectation applies to only those suits filed before the enactment of the Work Injuries Benefits Act and the Gazette Notice by Hon. Chief Justice does not confer jurisdiction upon the Magistrates Court as it is not a statute.
16.Counsel relied on among other cases, the case of Color Label Limited v Walubengo [2024] KEHC 3964 (KLR) to submit that without jurisdiction, the court cannot proceed any further and that the court should exercise its discretion favourably and allow the application dated 6th February 2020 for reasons that the Honourable Court did not have jurisdiction to hear and determine this matter, being a claim under the WIBA and as held in the above case, the Gazette Notice by the Hon. Chief Justice does not confer jurisdiction upon the Magistrates court as it is not Statute.
RESPONDENT’S SUBMISSIONS
17.The Respondent on the other hand did not file his submissions or attend court when directions on the delivery of judgment were given.
DETERMINATION.
18.The court has considered the Appeal, the record of appeal and submissions filed by the Appellant herein observes that the appeal revolves around the ruling of the trial court where that Court held that it had jurisdiction to entertain the suit having been filed in 2018 citing the doctrine of legitimate expectation as was espoused by supreme Court in Petition No. 4 of 2019, LSK VS AG & Another (2019) eKLR.
19.The court notes that the date of commencement of the WIBA was June 2, 2008 as per Legal Notice No .60 of May 23, 2008. The judgment of the High Court by Ojwang J. was delivered on March 4, 2009 and that of the Court of Appeal was delivered on November 17, 2017. The judgment of the Supreme Court was delivered on December 3, 2019.
20.The case in the lower court by the Respondent in this appeal was filed in 2018. This therefore means that the case by the Respondent was filed after the WIBA had commenced operation and the High Court had declared various sections of the Act unconstitutional before the case was filed. In addition, the Supreme Court had not dealt with the respective appeal filed therein as at the date of filing of the case.
21.This court notes that the Supreme Court did not give directions on cases that were filed between the decision of the High Court and when it made its decision. The two superior courts directed on matters that had been filed prior to coming into operation of WIBA on June 2, 2008 and directed that such matters should proceed on merits to logical conclusion based on the doctrine of legitimate expectation. This was the same observation in the case of Omutiti v Orpower 4 Inc [2023] KEELRC 1974 (KLR) where it was stated that: -
22.Due to this confusion the Chief Justice gave practice directions on the WIBA matters vide the Kenya Gazette No. 5477 of 28th April,2023 and provided as follows: -
23.This therefore means that by the time the Respondent filed their case at lower court in 2018 the WIBA had commenced and it was before the Supreme Court decision of 2019 that is between 2009-2019 hence within the bracket the Chief Justice addressed.
24.The Appellant’s assertion that the Chief Justice cannot confer jurisdiction to the court’s against statute is not sustainable because even the superior court appreciated the doctrine of legitimate expectation such that such cases could only proceed in court. Since the same year the suit was filed the only decision in force was he Court of Appeal decision of 2017 which had overturned the High Court decision of 2009 on unconstitutionality of the said provisions it was only logical to expect the parties to seek redress in court since the Court of Appeal’s decision had also been appealed to Supreme Court.
25.The practice directions were made for public interests to solve the big confusion experienced by courts and litigants. It was further intended to improve access to justice and could be defended under article 159 of the Constitution on judicial authority one which is that the courts shall exercise their authority without undue regard to procedural technicalities and that the purpose and principles of the Constitution shall be protected. Access to justice is one of the fundamental principles of the Constitution which cannot be defeated by giving premium to a technicality that could result in denial of access to justice.
26.The Supreme Court in Law Society of Kenya v Attorney General & another [2019] eKLR quoted with concurrence the dictum of the Court of Appeal in this matter thus:
27.The Supreme Court went on to state thus: -
28.The Court is in tandem with the holding of the two superior courts and consequently upholds the ruling by the lower court that it had jurisdiction to entertain the suit as per the directions given by the Chief Justice on such matters
29.The Appeal is therefore found without merit and is hereby dismissed with costs to the Respondent.
30.It is so ordered.
DATED AT NAIROBI THIS 13TH DAY OF OCTOBER 2025DELIVERED VIRTUALLY THIS 13TH DAY OF OCTOBER 2025ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION.