KWALE INTERNATIONAL SUGAR CO.LTD VS THE HON. THE CHIEF JUSTICE OF THE REPUBLIC OF KENYA

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

              CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

                                 PETITION NO. E415 OF 2023

KWALE INTERNATIONAL SUGAR COMPANY LIMITED………………………………………………….PETITIONER

                                                     VERSUS

THE HON. CHIEF JUSTICE OF

KENYA……………………………………….. RESPONDENT

JUDGMENT

Background

1. On 2^nd June 2008, Work Injury Benefits Act (WIBA) No. 13 of 2007 came into operation repealing the Workmen Compensation Act, Cap 236. The WIBA took away jurisdiction of courts to hear matters relating to work place injury and deceases claims and vested that jurisdiction on the Director of Occupational Safety and Health Services, (the Director).
2. The Law Society of Kenya challenged the constitutionality of the WIBA in Law Society of Kenya v Attorney General & Another.  Petition No. 185 of 2008.  In a judgment delivered on 4^th March 2009, the High Court declared sections 4, 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2) and 58(2) of WIBA unconstitutional.
3. The Attorney General appealed to the Court of Appeal in Nairobi Civil Appeal No. 133 of 2011 (The Attorney General v The Law Society of Kenya & Central Organization of Trade Unions (COTU). On 17^th November 2017, the Court of Appeal allowed the appeal and set aside the judgment of the High Court and the declarations of unconstitutionality.

1. The Law Society of Kenya appealed to the Supreme Court (Appeal Petition No. 4 of 2019 -Law Society of Kenya v Attorney General & Another).  On 3^rd December 2019, the Supreme Court dismissed the appeal and upheld the decision of the Court of Appeal. The Supreme Court further directed that the claims filed prior to the enactment of WIBA be processed and concluded under Worker man Compensation Act while those filed after WIBA be lodged and deemed processed under WIBA.
2. Subsequent to the Supreme Court judgment, the respondent issued Practise Directions through Gazette Notice No. 5476 dated 24^th April 2023, published in the Kenya Gazette issue of 28^th April 2023, on the “Pending Court Claims Regarding Compensation for Work Related Injuries and Diseases Instituted Prior to the Supreme Court Decision in Law Society of Kenya v the Attorney General and Another, Petition No. 4 of 2019 [2019] eKLR (Practice Directions).

Petitioner’s case

1. The petitioner filed this petition challenging the constitutionality and legality of the Practise Directions, arguing that the respondent had conferred jurisdiction on the subordinate courts and the Employment and Labour Relations Court (ELRC) through the impugned directions to handle and conclude WIBA cases filed prior to the Supreme Court judgment based on WCA.
2. The petitioner argued that up to the time the High Court delivered its judgment on 4^th March 2009 and pursuant to the orders issued on 22^nd May 2008, several WIBA matters were filed against it. It is the petitioner’s case, that from the High Court judgment delivered on 4^th March 2009 to the Court of Appeal judgment delivered on 17^th November 2017 and the Supreme Court judgment of 3^rd December 2019, numerous WIBA claims were also filed in court against it and other employers in the country.
3. The petitioner argued, therefore, that the implication of WIBA, the Court of Appeal and the Supreme Court decisions was that courts did not have jurisdiction to deal with all WIBA claims which were pending in court for want of jurisdiction as a result of which several matters were struck out.
4. The petitioner asserted that it had a legitimate expectation that all claims by its employees filed after WIBA were to be processed, handled and resolved by the Director as affirmed by the Supreme Court. The petitioner further asserted that in compliance with section 7 of WIBA, it procured insurance policies with Mayfair Insurance Company Limited for its employees for injuries and diseases they were exposed to or likely to suffer; reported to the insurer and made claims or suits filed against it under WIBA for processing and settlement. Mayfair Insurance on the other hand reinsured its exposure with appropriate reinsurance where it had to report any settlements or liability incurred under its respective policies within one year from the date of settlement of such liability.
5. The petitioner argued that following the judgements of the Court of Appeal and the Supreme Court, the subordinate courts and the ELRC struck out and or dismissed several suits against it for want of jurisdiction.  As a result, the petitioner and its insurers acquired a further legitimate expectation that such claims had been resolved and therefore there was no need to make any claims or declarations to the re-insurers for such claims. No claims for reinsurance nor provisions for such claims in the petitioner’s and its insurers’ financial books and statements were made.

1. The petitioner took the position, that the Practice Directions are unconstitutional. Further, that WIBA which has been in force since the Court of Appeal decision (17^th November 2017) had a retrospective applicability to the date it come into force.
2. The petitioner maintained that as a result of the Practice Directions, it has faced numerous claims which are being reinstated to be prosecuted to conclusion after which it will be forced to satisfy decrees awarded by courts which do not have jurisdiction by virtue of WIBA and the Court of Appeal decision as affirmed by the Supreme Court.
3.   The petitioner maintained that with the enactment of WIBA, it was under no obligation to provide for, procure or maintain any policy for claims under common law which may be raised by its employees. The Practice Directions purport to reinstate such claims before the subordinate courts and the ELRC and in the event of assessment in such claims and it is required to settle them, it will not be able to recover any money paid to satisfy those judgments and decrees from such claimants or any insurance in the event it was successful.
4. The petitioner argued that the Practice Directions infringe on its rights and continue to expose it to economic hardships, losses and damages since it had already taken out insurance policy covers for work related injuries sustained by employees in full compliance with WIBA. The petitioner argued that in issuing the Practice Directions, the respondent violated Articles 1, 2, 10, 27(1), 47, 50, 73, 94(1), 159(2), 163(7) and 169(2) of the Constitution.
5. The petitioner relied on Articles 94 as read with Article 1(3) (a) of the Constitution and sections 16, 21-27, 28-37, 38-46 and 57 of WIBA and the decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the argument that courts have no jurisdiction to deal with, assess, award, determine, preside over and make findings on compensation for work related injuries.

1. The petitioner further argued that the Practice Directions offend the doctrine of separation of powers by overruling express legislative provisions of WIBA; override the legislative power vested in Parliament by Articles 94(1) as read with Article 1(3) and deal with substantive law instead of procedural law.
2. The petitioner relied on sections 10 of the Judicature Act, 5(1) and 2(c) of the Judicial Service Act, and the decisions in Killbourn v Thompson, 103 US 168 (1880); Simeon Kioko  Kitheka & 18 others v County Government of Machakos & 2 others [2018] eKLR;  University of Lagos & another v M.I. Aigoro (SC32/1984) [1984] 10; West Kenya Sugar Co. Ltd v Libuyi (Appeal E013 of 2021)[2022]KEELRC 13244 (KLR) (17 November 2022) (Judgment)  and Sammy Ndung’u  Waity v Independent  Electoral & Boundaries Commission & 3 others [2019] eKLR to support its position.
3. The petitioner contended that the Practice Directions violate Article 163(7) of the Constitution by undermining the Supreme Court decision which had already addressed itself on the constitutionality of WIBA. The Practice Directions have also caused chaos since the Supreme Court decision had already been adopted by subordinate courts and the ELRC in their findings in West Kenya Sugar Co. Ltd v Libuyi [2022] KEELRC 13244(KLR); Perfect Scan Limited v Harrison Kahindi Said [2021] eKLR; and Manuchar Kenya Limited v Dennis Odhiambo Olwete [2020] eKLR, among others.
4. According to the petitioner, the Practice Directions were issued without stakeholders’ participation; they undermine the rule of law as they attempt to overrule, set aside or vary the Supreme Court decision. They offend the principle of equity and equality because the respondent only took into account the legitimate expectation of the claimants in cases filed prior to the Supreme Court decision and did not consider legitimate expectation of the petitioner and other employers. The petitioner relied on the decisions in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR and Kenya Human Rights Commission v Attorney General & another [2018] eKLR.
5. The petitioner also made reference to the decision in West Kenya Sugar Co Ltd v Tito Lucheli Tangale [2021] eKLR and MacFoy v United Africa Co. Ltd (1961) 3 All ER 1170 for the argument that a judge declared law does not necessarily mean that that law is right in itself and that whatever action is done on its strength and under the impression that it was right, does not make it right.
6. On the import of the Court of Appeal judgment on WIBA matters filed in court from 22^nd May 2008 to 17^th November 2017, the petitioner relied on Heritage Insurance Company Limited v David Fikiri Joshua & another [2021] eKLR, to argue that courts have no jurisdiction to preside over those matters.
7. The petitioner relied on the decision in Republic v Kenyatta University Exparte Martha Waihuini Ndungu [2019] eKLR to reiterate that Parliament having enacted WIBA and the Supreme Court having affirmed the validity of the mechanisms for such settling claims under WIBA, it together with other defendants in such claims acquired legal expectation that claims against it were to be handled under WIBA. This expectation could only be set aside by a statute enacted by Parliament.

1. The petitioner placed reliance on the decisions in Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 2011 (KLR) and Securicor Security Services Ltd v Joyce Kwamboka Ong’ong’a suing as The Personal and Legal Representative of Francis Ong’ong’a Mogire (Deceased) [2011] eKLR for the position that WIBA envisaged a strict liability compensation for work related injury and disease claims with structured awards contrary to the WCA where the awards were assessed and made in addition to any other claims due to the employee under any other law. 
2. The petitioner argued that the obligation upon it and other employers to insure common law master- servant liabilities which previously existed under section 26 of WCA having been brought to an end by WIBA, reopening such liabilities and obligations through the Practice Directions denied it and other employers the benefit of the law that exists and remains in force through the new obligations established and are in force under WIBA.
3. Based on the above arguments, the petitioner sought the following reliefs:
4. A declaration that Gazette Notice No. 5476 dated April 24, 2023  as published in the Kenya Gazette  issue of April 28, 2023 titled  PRACTICE  DIRECTIONS 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 THE ATTORNEY GENERAL AND ANOTHER, PETITION NO. 4 OF 2019 (2019) eKLR  issued and published by the respondent is unconstitutional as it is in breach of articles 1, 2, 10, 27(1) & (2), 47, 50, 73, 94(1),159(1) &(2), 163 (7) , 165(3) and of 169(2) of the Constitution therefore null and void and of no effect.
5. Judicial Review remedies to wit:
6. AN order of certiorari to bring before this Honourable Court for purposes of being quashed Gazette Notice No. 5476 dated April 24, 2023 as published in the Kenya Gazetted issue of April 28, 2023 tiled PRACTICE DIRECTIONS 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 VS THE ATTORNEY GENERAL AND ANOTHER, PETITION NO. 4 OF 2019 (2019) eKLR.
7. An order of mandamus compelling the respondent to revoke, nullify, cancel, degazette and/or withdraw Gazette Notice No.  5476 dated April 24, 2023 as published in the Kenya Gazetted issue of April 28, 2023 titled PRACTICE DIRECTIONS RELATING TO PENDING COURT CLAIMS REGARDING COMPENSATION FOR WORK RELATED INJURIES AND DISEASE INSTITUTED PRIOR TO THE SUPREME COURT DECISION IN LAW SOCIETY OF KENYA vs THE ATTORNEY GENERAL AND ANOTHER, PETITION NO. 4 OF 2019 (2019) eKLR.
8. Any other or further orders this Honourable court may deem fit to grant in the circumstances.
9. Costs of the Petition.

Respondent’s case

1. The respondent file a replying affidavit sworn by Mucimi Mbaka, Senior Legal Counsel in the respondent’s office and written submissions in opposition to the petition. The affidavit gave the background of the law previously in force, the WIBA and the subsequent litigation.
2. It was stated that the Court of Appeal had noted the need for reconsideration of section 58(2). The section states that claims lodged under the repealed Act would be deemed to have been lodged under WIBA.
3. According to the respondent, the LSK and the judiciary deliberated on the issue following the Judgment of the Supreme Court and agreed that Practice Directions be issued to address claims that had not been finalized, thus the respondent exercised mandate donated under the Judicature Act and the Judicial Service Act.
4. The deponent denied that there was violation of Article 94(1) of the Constitution; the directions were issue pursuant to the decisions of the Court of Appeal and the Supreme Court; the directions did not confer jurisdiction on the magistrates and that the Supreme Court decision did not confer legitimate expectation on the petitioner. The directions are merely procedural and not substantive law; apply to the ELRC and the Magistrates Courts and on cases filed before and after commencement of WIBA but before the Supreme Court decision.
5. It was pointed out that in Mugatsia v Protective Custody Services [2024] KEELRC 41 (KLR), the Court agreed that the Practice Directions addressed the position regarding the two schools of thought that had emerged after the Supreme Court decision and there was no violation of any of the constitutional provisions.
6. In the written submissions, the respondent argued, relying on Articles 165 (3) & (5), 163 (3) & (7) of the Constitution and the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Francis Karioko Muruatetu & another v Republic [2017] eKLR, that the prayers sought are inconsistent with the Supreme Court decision. Further, that this Court lacks jurisdiction to hear and determine the petition.
7. The respondent again relied on Articles 94(5), (6) and 161(2) (a) of the Constitution, section 10 of the Judicature Act, section 5(1) (2) (c) of the Judicial Service Act and sections 27(2)(d) and 29(3) (4) of the ELRC Act for the argument that the Practice Directions were lawfully issued in exercise of constitutional and statutory mandate.
8. The respondent asserted that the Practice Directions were not issued suo moto but pursuant to the Court of Appeal and Supreme Court decisions and the consultative meetings held with the Law Society of Kenya to address the pending claims which had not been finalized in the respective courts due to the lapse of time and could not be feasibly withdrawn and handled by the Director under WIBA.
9. The respondent denied conferring jurisdiction on the ELRC and Magistrates Courts to handle and conclude WIBA cases. The cases referred to by the petitioner in the pleadings were filed between 2015 and 2016 after the High Court decision and were therefore, properly filled in the Magistrates Courts.
10. The respondent relied on the decision in Christopher Wafula Mutoro v Richard Lordia Lokere [2017] eKLR that according to the Court of Appeal and Supreme Court decisions, the claimants in the pending cases have legitimate expectation that upon the enactment of WIBA, their cases would be concluded under the judicial process which they had invoked. The petitioner’s assertions that the decision gave it legitimate expectation that all claims filed after commencement of WIBA should be handled by the director is misleading.
11. The respondent again relied on the decision in Attorney General & 2 others v Ndii & 79 others; Dixon  & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021(Consolidated)) [2022] KESC 8 (KLR) that Practice Directions are procedural  guidelines issued for the purposes and objectives of, among others, consolidating and standardizing practice and procedure in the ELRC  and Magistrates  Courts in relation to claims for compensation for work related injuries and diseases, instituted prior  to the Supreme Court  decision, which are pending in courts.
12. The respondent submitted that the Practice Directions only apply to the ELRC and the Magistrate’s Courts and their nature and scope is in relation to handling of work injury claims filed in Courts before and after the commencement of WIBA and before the Supreme Court decisions. The principles and standards applicable to the Practice Directions are those set out under Articles 10 and 159 (2) of the Constitution and section 4 of the Statutory Instruments Act. The respondent relied on the decision in Edward Mwaniki Gaturu & anothers v Hon Attorney General & 3 others [2013] eKLR.
13. According to the respondent, the ELRC has considered the applicability of the Practice Directions and rendered  decisions based on it, namely; Mugatsia v Protective Custody Services (Employment and Labour Relations Appeal 6 of 2021) [2024] KEELRC 41 (KLR); Chenje v Kibo & Allied Industries & another (Employment and Labour Relations Appeal No. 17 of 2023) [2024] KEELRC 453 (KLR); Adel v Abbysinia Iron & Steel Company Ltd (Appeal E003 of 2021) [2024] KEELRC 694 (KLR), among others.
14. The respondent asserted urged that the Practice Directions have assisted the Court and court users to better understand the applicability of WIBA in view of the pending claims that were filed after the High Court decision but before the Court of Appeal decision and are constitutional.
15. The respondent relied on the decision in Trusted Society of Human Rights Alliance v Attorney General and 2 others [2012] KEHC 2480 (KLR) and urged the court to dismiss the petition with costs. 

Determination

1. I have considered the petition, arguments by parties and the decisions relied on. The issue for determination is whether the impugned Practice Directions violate the decision of the Supreme Court and are unconstitutional. The petitioner argued in the affirmative while the respondent took the opposite view.
2. The facts of this petition are not in dispute. The High Court had declared several sections of the WIBA unconstitutional. That decision was reversed by the Court of Appeal in its judgment delivered on 17^th November 2017. In that judgment, the Court of Appeal stated that claimants in pending claims had legitimate expectation that upon passage of the Act their cases would be concluded under the judicial processes they had invoked. The Court referred to the interim orders the High Court had issue that all pending litigation that had been commenced on the basis of the Workman’s Compensation Act or the common law, or of a combination of both, would continue to be prosecuted and in a proper case, finalised on the basis of the operative law prior to the entry into force the WIBA.
3. The Court of Appeal   reiterated, referring to section 23 of the Interpretation and General provisions Act, that where a written law partially or wholly repeals another written law, unless a contrary intention appears, the repealed law cannot revive anything not in force or existing before the repeal or affect the previous operation of a repealed law in relation to interests, rights or obligations enshrined under such law.
4. On appeal, the Supreme Court upheld and affirmed the decision of the Court of Appeal. Of importance, the Supreme Court stated:  

[85] In agreeing with the Court of Appeal, we note that it is not in dispute that prior to the enactment of the Act, litigation relating to work-injuries had gone on and a number of the suits had progressed up to decree stage; some of which were still being heard; while others were still at preliminary stage.  All such were being dealt with under the then existing and completely different regimes of law. We thus, agree with the Appellate Court that claimants in those pending cases have legitimate expectation that upon the passage of the Act, their cases would be concluded under the judicial process which they had invoked. However, were it not for such legitimate expectation, WIBA, not being unconstitutional and an even more progressive statute, as we have shown above, we opine that it is best that all matters are finalized under section 52 aforesaid.

1. Following that the Supreme Court judgment, the respondent issued the impugned Practice Directions to apply to the ELRC and the Magistrates’ Courts appointed by the Chief Justice under section 29 (3) and (4) of the Employment and Labour Relations Act, on pending court claims for compensation for work related injuries and deceases instituted prior to the Supreme Court decision in Law Society of Kenya v Attorney General & Another Petition No. 4 of 2019[2019] eKLR. The directions were issued through Gazette Notice No. 5476 dated 24^th April 2023.
2. The objectives of the Directions was to consolidate and standardize practice and procedure in the ELRC and the Magistrates’ Courts in relation to claims for compensation for work related injuries and deceases instituted prior to the Supreme Court decision of 3^rd December 2019 which are pending in court.
3. Direction 6(a) provides that all claims with respect to compensation for work related injuries and deceases filed in various courts before the commencement of WIBA shall proceed to conclusion under the repealed Workman’s Compensation Act.

    (b) all judgments and rulings relating to work related injuries claims pending before the ELRC and the Magistrates’ Courts shall be delivered by those courts.

Direction 7 relates to claims filed after commencement of WIBA, but before the Supreme Court Judgment. Direction 7(a) states that:

1. All claims with respect to compensation for work related injuries and deceases filed after the commencement of WIBA and before the Supreme Court decision at the Employment and Labour Relations Court or the Magistrates’ Courts shall proceed to conclusion before those courts.
2. All pending judgments and rulings relating to compensation for work related injuries and deceases before the Employment and Labour Relations Court and the Magistrates Courts shall be delivered by the same court.

Direction 8 on claims filed after the Supreme Court decision states that:

1. All claims with respect to compensation for work related to injuries and deceases shall commence before the Director of Occupational Safety and Health Services.
2. All appeals emanating from the decision of the Director of Occupational and Safety Health Services shall be before the Employment and Labour Relations Court.
3. Such appeals shall be heard and determined through the appropriate appellate mechanisms within the judiciary hierarchy.

Direction 9 on non-compliance states that non-compliance with the directions shall result into such penalty as the Court may order.

1. The petitioner challenged the Gazette Notice and all the directions issued by respondent seeking their nullification. The Petitioner argued that the directions violated the petitioner’s legitimate expectation and that of other employers and that the directions purported to interpret the decision of the Supreme Court. Although the respondent did not file a response to the petition within the time allowed, the replying affidavit and submissions filed outside time were allowed to be on record and be considered by the Court.
2. The respondent argued that the prayers sought are inconsistent with the Supreme Court decision; that this Court lacks jurisdiction to hear and determine this petition and that the directions were properly issued and in accordance with the law.

Jurisdiction

1. The respondent argued that this Court has no jurisdiction to hear and determine the petition and relied on several decisions, including Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Francis Karioko Muruatetu & another v Republic [2017] eKLR.
2. Jurisdiction is the power or authority conferred on a court to hear and determine disputes presented before it. When jurisdiction of the Court is challenge, the Court has to consider and determine the fundamental question of its jurisdiction over the matter. Should the Court determine that it has no jurisdiction to hear a particular matter, that must be the end. It cannot take any further step. It must down its tools. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR).
3. In Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Supreme Court stated:

[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.

1. In re the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] eKLR, the Supreme Court, after referring to the decision in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), stated:

[30] The Lillian ‘S’ case 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 craft 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. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.

1. The jurisdiction of a court must thus, flow from the Constitution, statute or both. The Court should only exercise jurisdiction as conferred on it by the Constitution or the law. It must not act without jurisdiction.
2. The jurisdiction of this Court is donated by Article 165(3) of the Constitution to, among others, (b) determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (d) any question respecting interpretation of the Constitution, including the determination of—(i) the question whether any law is inconsistent with or in contravention of the Constitution; “(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.”
3. Article 165(3) thus, authorises this Court to decide all matters except those reserved for other courts as contemplated in Article 162 (2) and restricted by Article 165(5) and (6). In that regard, therefore, the constitutional authorisation given to this court is not in doubt. This Court has wide jurisdiction to hear and determine various matters brought before it. The question whether this Court has jurisdiction to hear and determine this petition must, therefore, be viewed through the prism of Article 165(3)(b) and (d).
4. This petition was brought under several provisions of the Constitution, including Articles 22 and 23. Article 22(1) gives every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. On the other hand, Article 23 (1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights.
5. This petition was brought alleging that the impugned Practice Directions violated the petitioner’s right to equal protection of the law and legitimate expectation. The petitioner further argued that by issuing the Practice Directions purporting to confer jurisdiction to the ELRC and the Magistrates’ Courts to determine claims arising from injuries and deceases suffered by employees at work places after the enactment of the WIBA and before the Supreme Court decision, the respondent acted unconstitutionally by conferring on herself legislative authority in breach of Article 94(1) of the Constitution.  it is also in breach of Articles 47; 50; 163(7)  and 169(2) of the Constitution.
6. It is clear that the petition raises both issues of violation of rights and fundamental freedoms and the Constitution which fall within the jurisdiction of this Court under Article 165(3) the Constitution. This Court finds and holds that it has jurisdiction to hear and determine the petition.

Violation of the Constitution

1. The next issue is whether the Practice Directions violate the constitution and legitimate expectation. The petitioner argued that the Practice Directions violate various provisions of the Constitution, including conferring jurisdiction on the two levels of the Courts (ELRC and Magistrates’ Courts). The petitioner also argued that the Practice Directions violated Article 94(1) of the Constitution. The respondent denied violating the Constitution and asserted that the practice Directions were issued in accordance with the law to address the gap left after the Supreme Court decision.
2. The petitioner did not argue that the respondent has no mandate under the law to issue practice directions. Indeed, the respondent pointed to section 27(2) (d) of the Employment and Labour Relations Act that confers the power to make rules for regulating practice and procedure for the ELRC. In the circumstances, the issue is whether the whole Gazette Notice is constitutionally invalid or some only of the Practice Directions.
3. I have perused the Gazette Notice and the impugned Practice Directions. Practice Direction 4, is on the objectives. The petitioner did not point out anything wrong with this direction. Direction 5 is a highlight of the decision of the Supreme Court and nothing untoward was pointed out against this direction too.  Direction 6 relates to claims filed before the commencement of WIBA, so that those claims would continue to conclusion under the old legal regime and all judgments and rulings pending before the ELRC and the Magistrates’ Courts would be delivered by those Courts. The petitioner did not identify anything unconstitutional or illegal about this direction.
4. Direction 7 is on the claims filed after commencement of WIBA, but before the decision of the Supreme Court. Direction 7 (a) is to the effect that all claims with respect to compensation for work related injuries and deceases filed after the commencement of WIBA and before the Supreme Court decision, at the Employment and Labour Relations Court or the Magistrates’ Courts should proceed to conclusion before those courts. Practice Direction 7 (b) states that all pending judgments and rulings relating to compensation for work related injuries and deceases before the Employment and Labour Relations Court and the Magistrates Courts should equally be delivered by the same court.
5. Direction 8 is on claims filed after the Supreme Court decision and states that those claims should commence before the Director of Occupational Safety and Health Services; all appeals emanating from the decision of the Director of Occupational and Safety Health Services should be filed before the Employment and Labour Relations Court and such appeals should be heard and determined through the appropriate appellate mechanisms within the judiciary hierarchy. Direction 9 is on non-compliance and states that non-compliance with the directions should result into such penalty as the Court may order.
6. Practice Directions 8 and 9 do not raise anything serious that calls for pronouncement on inconsistency with the Constitution or the law to amount to unconstitutional or illegal directions.
7. Formulation of Practice Directions, more particularly Practice Direction 7, took into account the fact that the judgment of the High Court had declared, among others, sections 16, 23, 52 and 58(2) of WIBA, which prescribe the procedure to be followed in filing claims, unconstitutional. The declaration created a legitimate expectation that claimants could file cases directly into court. Indeed, cases were filed and continued to be heard and processed under the old regime until the decision of the Court of Appeal delivered on 17^th November 2019.
8. In its judgment, the Court of Appeal appreciated the problem with section 58(2) which is a transitional provision. The Court of Appeal observed that “In its original form section 58(2), though not inconsistent with the former or current Constitution, requires further consideration to ensure smooth transition to the Act from Workman’s Compensation Act.”  In other words, the Court of Appeal saw a gap in section 58(2) with regard to transitioning of claims from the repealed law to the new Act.
9. Section 58(2) provides that “Any claim in respect of an accident or disease occurring before the commencement of this Act shall be deemed to have been lodged under this Act.”  This section has a problem as it does not provide for a clear transitional framework from the old Act to the new law and that was why the Court of Appeal sounded the alarm that the section needed a relook.
10. The impugned Practice Directions, especially Practice Direction 7, was to address the legitimate expectation of claimants who had lodged claims in court as the matter made its way to the Supreme Court and were still in the court system so that their right of access to justice was not lost for reasons other than their own making.
11. The petitioner argued that it had a right to equal protection of the law and legitimate expectation. Whereas that is true, claimants who had lodged claims in court had the same right to equal protection of the law and legitimate expectation that their claims would be determined. Where there are competing rights, those rights must be balanced so that no right taken to be superior to the other.
12. In this regard, this Court observed in Jack Mukhongo Munialo & 12 others v Attorney General & 2 others, [2018] eKLR, that in considering rights, including limitation, the court has to bear in mind that there is no superior right and take into consideration factors, such as the need to ensure that enjoyment of rights and fundamental freedoms by one individual does not prejudice the rights of others, which “calls for balancing of rights under the principle of proportionality because rights have equal value and, therefore, maintain the equality of rights.”
13. The impugned Practice Directions are really transitory to enable a smooth flow from the old regime to the new law while ensuring that a party having lawfully lodged a claim has access to justice rather that the claim being lost in the confusion caused by the litigation. For instance, what would happen to claims that had been lodged, processed and fixed for hearing; claims that were part heard or had been heard and judgments reserved?
14. The respondent argued that the Employment and Labour Relations Court has variously considered the applicability of the Practice Directions and rendered decisions based on the Directions. The petitioner also argued that courts had made determination on such cases.
15. The respondent drew the Court’s attention to decisions in Mugatsia v Protective Custody Services [2024] KEELRC 41 (KLR); Chenje v Kibo & Allied Industries & another [2024] KEELRC 453 (KLR) and Adel v Abbysinia Iron & Steel Company Ltd [2024] KEELRC 694 (KLR), among others, to demonstrate that the Employment and Labour Relations Court had adopted the Practice Directions as constitutional and moved on.
16. Indeed, in Mugatsia v Protective Custody Services (supra), the Court appreciated the problem and confusion that had been caused as a result of the decisions of the High Court and reversal of that decision by the Court of Appeal which was affirmed by the Supreme, stating:

[21] Following the High Court decision declaring sections 16 and 52 unconstitutional, all WIBA claims found their way back into the courts with the bulk of them being filed in the Magistrates courts because of their pecuniary jurisdiction. A few were filed in the Employment and Labour Relations Court. The decision of the Court of Appeal which was confirmed by the Supreme Court reinstated sections 16 and 52 of the Act among others. The superior courts however did not address the issue of cases filed after commencement of the Act that were pending before the Employment and Labour Relations Court and the Magistrates’ courts.

[22] There emerged two schools of thought; one was of the view that the decision of the High Court having been set aside, all cases filed in the Magistrates courts after the date of commencement of the Act were filed without jurisdiction and were for striking out. The other school of thought was of the view that there being a presumption that the decisions of the courts are valid until and or unless they are set aside by a Court of superior jurisdiction, the cases filed between the dates of the two decisions were properly before the courts and should be concluded in the courts in which they were filed. This explains the contradictory decisions cited by the parties.

[23] Fortunately, the position has now been clarified by the Chief Justice in the Practice Directions issued through Gazette Notice No. 5476 dated 24th April 2023. According to the Practice Directions, all claims with respect to compensation for work related injuries and diseases filed after the commencement of WIBA and before the Supreme Court decision at the Employment and Labour Relations Court or the Magistrates’ Courts shall proceed until conclusion before the said courts.

1. In Chenje v Kibo & Allied Industries & another (supra), the Court again appreciated existence of the Practice Directions published in Kenya Gazette No. 5476. The Court noted that the directions were issued by the Chief Justice under the legal framework of “the Constitution of Kenya, the Judicature Act, the Judicial Service Act, the Employment and Labour Relations Court Act and the Work Injury Benefits Act.”
2. The Court stated that the Chief Justice has authority to issue practice directions under section 27 of the Employment and Labour Relations Act and that the Practice Directions address the fate of cases filed and pending in Court post WIBA and before the Supreme Court decision. The Court held that “the Practice Directions would give life to the cases like the instant one.”
3. The Court then stated:

[29] The Court in exercise of its judicial power in the matter then finds the question would be whether the appellant would suffer any prejudice pursuant to the Practice Directions. Article 159 (2)(d) provides that justice shall be administered without undue regard to procedural technicalities and that means the Court should focus on substantive justice. There is no tangible prejudice to be suffered by the appellant in the instant case.

[30]. The Court finds by doctrine of necessity the WIBA practice directions as gazetted by the Chief Justice pass muster in the eyes of the Court so as to promote access to justice to litigants who are caught up with WIBA cases filed in Court in the period between Justice Ojwang’s decision and the Court of Appeal 2017 and Supreme Court 2019 decisions. In the upshot the practice directions having expressly granted jurisdiction to the magistrates to handle WIBA matters filed in Court before the delivery of the Supreme Court decision of 3^rd December 2019, then the appeal succeeds on the issue of jurisdiction.

1. And in Adel v Abbysinia Iron & Steel Company Ltd (supra) the Court considered Practice Direction 7 and stated that the directions “were not meant to have a retrospective application for matters that have been finalized, and would therefore only be applicable to pending matters.”
2. These decisions demonstrate that the Practice Directions have been considered, adopted, applied and interpreted by the Employment and Labour Relations Court on the extent of their application in that Court and the Magistrates’ Courts thus, clearing the confusion that had prevailed. The essence of the holding being that they enabled access to justice in matters that were “pending.” And not those concluded or finalised.
3. In that respect, this Court agrees and takes the view, that to the extent that the Practice Directions were issued pursuant to law, have been integrated and applied by the Courts they were intended to assist in clearing the confusion, any other holding would only create more confusion and cause destabilisation of litigation in claims pending before Employment and Labour Relation Court and the Magistrates’ Courts thereby causing contradiction between the decisions of the Employment and Labour Relations Court and the High Court. One thing must be clear, that the Practice Directions apply to pending cases that were still in the court system and not otherwise.
4.   In the circumstances, having considered the petition, the response, arguments by parties and the decisions referred to, the conclusion I come to, is that the practice directions were properly issued and do not violate the Constitution. Consequently, the petition has no merit. It is declined and dismissed.  Each party will however bear their own costs.

Dated and delivered at Nairobi this 14^th Day of March 2025

                                             E C MWITA

                                               JUDGE