1. The Appellant instituted a civil suit in Nyahururu CMC Civil Suit No. 100 of 2018. This was a result of an Industrial Accident under the Work Injuries Benefit Act, 2007 alleged to have occurred on 30 th November, 2017.
2. That as parties were waiting for directions on how work injury claims were to proceed, the matter was dismissed for want of prosecution on 6 th December, 2021.
3. That following directions issued by Chief Justice per the Gazette Notice Volume CXXVN – NO. 99 dated 28 th April, 2023, counsel for the Appellant wrote a letter dated 6 th June, 2023 requesting for directions only to find that the suit was dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
4. The Appellant filed an application seeking to have the suit reinstated which was dismissed on grounds that the Appellant was obligated to cause the matter to be mentioned for directions during pendency of resolving how matters were to proceed in Industrial Court and having failed to keep the matter active during the intervening period equity which aids the vigilant could not aid him as the delay was of three (3) years. Three (3) years later was viewed by the court as having been inexcusable period. Hence dismissal of the application.
5. A casual perusal of the submissions filed by both the Appellant and Respondent clearly show that the matter emanates from an injury that occurred while the Appellant was at work. It was stated that the Appellant was in the cause of employment at the time of the accident.
6. Particulars of negligence pleaded include failure to ensure proper working systems in place. The Respondent was sued in its capacity as the employer of the Appellant, a fact admitted by the Respondent. This is therefore a matter that falls under the Work Injury Benefits Act.
7. The Supreme Court in the case of Law Society of Kenya v Attorney General & Another [2019] KESC 16 KLR held as follows;
“16. The legislative practice where a new judicial forum was created to replace an existing system was meant to ensure finalization of all pending proceedings before the forum where they were commenced. Prior to the enactment of WIBA, litigation relating to work-injuries had gone on and a number of suits had progressed up to decree stage; some were still being heard; while others were still at the preliminary stages. All such matters were being dealt with under the then existing and completely different regimes of law. Claimants in those pending cases had 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 being an even more progressive statute, it was best that all matters were finalized under its section 52.”
8. Section 52(2) of Work Injury Benefits Act provides thus;
An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision.
9. In as much as the matter was before the Magistrate’s court before directions were given by the Supreme Court and had to be concluded before the same court, the appeal from the decision were required to be filed at the specialized court.
10. At first appellate court, under work injuries, legal redress is to be sought at the Employment and Labour Relations Court, not the High Court. The ELRC has specialized jurisdiction including injury cases.
11. For that reason, this court lacks jurisdiction to determine the appeal. Therefore, the appeal be and is hereby struck out for want of jurisdiction. The Appellant is at liberty to move to the correct court.
12. It is so ordered.
HCCA E011 OF 2024 (JUDG.) Page 2 of 2
2. That as parties were waiting for directions on how work injury claims were to proceed, the matter was dismissed for want of prosecution on 6 th December, 2021.
3. That following directions issued by Chief Justice per the Gazette Notice Volume CXXVN – NO. 99 dated 28 th April, 2023, counsel for the Appellant wrote a letter dated 6 th June, 2023 requesting for directions only to find that the suit was dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
4. The Appellant filed an application seeking to have the suit reinstated which was dismissed on grounds that the Appellant was obligated to cause the matter to be mentioned for directions during pendency of resolving how matters were to proceed in Industrial Court and having failed to keep the matter active during the intervening period equity which aids the vigilant could not aid him as the delay was of three (3) years. Three (3) years later was viewed by the court as having been inexcusable period. Hence dismissal of the application.
5. A casual perusal of the submissions filed by both the Appellant and Respondent clearly show that the matter emanates from an injury that occurred while the Appellant was at work. It was stated that the Appellant was in the cause of employment at the time of the accident.
6. Particulars of negligence pleaded include failure to ensure proper working systems in place. The Respondent was sued in its capacity as the employer of the Appellant, a fact admitted by the Respondent. This is therefore a matter that falls under the Work Injury Benefits Act.
7. The Supreme Court in the case of Law Society of Kenya v Attorney General & Another [2019] KESC 16 KLR held as follows;
“16. The legislative practice where a new judicial forum was created to replace an existing system was meant to ensure finalization of all pending proceedings before the forum where they were commenced. Prior to the enactment of WIBA, litigation relating to work-injuries had gone on and a number of suits had progressed up to decree stage; some were still being heard; while others were still at the preliminary stages. All such matters were being dealt with under the then existing and completely different regimes of law. Claimants in those pending cases had 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 being an even more progressive statute, it was best that all matters were finalized under its section 52.”
8. Section 52(2) of Work Injury Benefits Act provides thus;
An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision.
9. In as much as the matter was before the Magistrate’s court before directions were given by the Supreme Court and had to be concluded before the same court, the appeal from the decision were required to be filed at the specialized court.
10. At first appellate court, under work injuries, legal redress is to be sought at the Employment and Labour Relations Court, not the High Court. The ELRC has specialized jurisdiction including injury cases.
11. For that reason, this court lacks jurisdiction to determine the appeal. Therefore, the appeal be and is hereby struck out for want of jurisdiction. The Appellant is at liberty to move to the correct court.
12. It is so ordered.
HCCA E011 OF 2024 (JUDG.) Page 2 of 2