Onesmus Njenga Gachie v Hydery (P) Limited [2019] KEHC 5792 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO 11 OF 2018

ONESMUS NJENGA GACHIE.........................................APPELLANT

VERSUS

HYDERY (P) LIMITED..................................................RESPONDENT

J U D G M E N T

1. The Appellant  ONESMUS NJENGA GACHIE, was  the plaintiff is civil  suit No. 581 of 2016 at Mombasa where he  instituted a suit against the  Respondent  (Defendant ) vide a plaint filed on 22nd March,2016  claiming general damages, special damages, costs and interest  on  account of injuries he alleged  to have sustained in the  course of   employment by the defendant as a loader, on 9th February,2016.

2. The appellant  averred that  it was the respondent’s duty to take all  reasonable  precautions for his safety while  engaged in the said  employment  and not to have exposed him to a risk of injury and to  have  provided a safe and proper system of  working environment.

3. The  Appellant averred that on the alleged date he was  lawfully and  carefully in the course of his employment whereof he had been  instructed to carry  sacks weighing 50 Kgs of  manure/fertilizer from  the go-down to a waiting lorry when a  colleague threw  a 50 Kgs  sack   on him as he  also carried a 50 Kgs sack on his back, a result of which  he fell down due to the impact and sustained serious  injuries.

4. The Appellant particularized the particulars of negligence/breach of  contract as follows’

(i) Failing to take any or any reasonable care to see that the plaintiff would be reasonably safe while he was engaged upon his work.

(ii) Exposing the plaintiff to risk of damages or injury which they knew or ought to have known.

(iii) Failing to provide the plaintiff with safety clothes  and or gloves.

(iv) Failing to provide any or any sufficient supervision.

(v) Having an inherently dangerous system of work.

5. The Respondent filed a written statement of defence dated 19th April,  2016 in which he denied the allegations by the appellant that he was  injured while on duty and denied the particulars of negligence on its  part.

6. The  Respondent averred that  if  at all the appellant got injured, then  it was due to his  own negligence or that he  contributed to it .The  Respondent also  particularized  the particulars  of  negligence  on the  part of the appellant as follows;

(a) Failing to work in a careful manner and wrong in a    careless manner;

(b) Failing to take heed or sufficient heed for his own    safety;

(c) Failing to take and/or to follow instructions on safe    working  practice;

(d) Failing to wear the safety gear provided.

The Respondent urged the court to dismiss the Appellant’s suit with  costs.

7. After hearing the evidence that was adduced by the Appellant and  Respondent, the trial, magistrate found that the Appellant had failed  to  link the respondent  to the accident in which he alleged he had  sustained injuries and went on to dismiss his claim with  costs.

8. Being  dissatisfied  with the  said decision, the Appellant has  moved   this court through a memorandum of appeal dated 9th Feburay,2018  and filed in court on 13th February, 2018 wherein he raised six grounds  of appeal  as follows;

(1) That the learned magistrate erred in fact and  in law in failing  to find that an accident  occurred when the appellant was  in the course of his employment with the Respondent.

(2) That the learned magistrate erred in law and fact failing to attribute negligence on the part of Respondent and analyse the  evidence on the particulars of negligence.

(3) That the learned magistrate erred in law and fact in failing to  analyses the evidence adduced by the Respondent’s witness as well as the Appellant’s     evidence.

(4) That the learned magistrate erred in law and fact in failing to  find that the respondent is not vicariously liable for the accident that occurred on 9. 2.2016.

(5) That the learned magistrate erred in fact and in law in failing  to consider that the Respondent corroborated the evidence of the Appellant  in toto

(6) That  the learned magistrate erred in both  law and fact by filing to appreciate the appellant’s  written submissions.

9. The  parties  were directed to dispose of the appeal  by  way of  written  submissions  on 2nd October, 2018 which were  confirmed as sufficient  on 5th February,2019.

10. This  court  is alive of its duty as  the first appellate  court, which duty  was  restated in the case of JOSEPH MUNGA’THIA VRS COUNTY  COUNCIL  OF MERU AND  ANOTHER  C A CIVIL APPEAL NO  146  OF 2002 (NYERI (unreported ) at page 11 of the  judgment, the  court had  this to say;

“In law, this matter coming as a first appeal, we have a duty  to consider both matters of fact and of the law. On facts, we  are duty bound on first  appeal to analyse the evidence  afresh, evaluate it, and arrive at our own  independent   conclusion, but always bearing  in  mind  that the trial court  had the advantage  of seeing the witnesses and seeing their  demeanor  and  making  allowance for the same”

(See also Selle and Another vrs Associated  Motor Boast   Company ltd  & others ( 1968) E A 123 -126 (CA-2) and  Williamson Diamonds Ltd Vrs Brown  1970 E.A 1,12 C A – T).

11. In the instant appeal, I have carefully considered the grounds of appeal  raised by the appellant, the submissions by both parties, pleadings   and the evidence that was adduced before the trial court. I find that in  the interest of justice, this courts need to establish whether this appeal  is properly before it, before going into the merits and demerits of it.

12. Looking at  the  plaint  dated and filed on the 22nd March,2016 in the  subordinate  court ,it is averred at  paragraph 3 of it that the plaintiff  was employed by the defendant  as a loader and on page 65 of the  Record of Appeal dated 22nd February,2018; the defendant’s  DW1, Mr   KIBANDA BENCHI MUGO, confirms in his testimony that the   plaintiff was a casual labourer  and  he was injured in the course of  employment.

13. From the court’s observation that there is an employer- employee  relationship between the Respondent and the Appellant herein, a  result of which the court clothed with the jurisdiction to determine an  appeal where there exists an employer –employee relationship  between the parties would be the Employment and Labour Relations   Court.

14. Jurisdiction is the very basis on which any Tribunal or court tries a  case, it is the lifeline  of all trials. A trial without jurisdiction is a nullity.  The importance of jurisdiction is the reason why it can be raised at any  stage of a case, be it at the trial, or appeal to court of Appeal or to this  court afortiori  the court can suo moto raise it.  It is in the interest of  justice for this court to then raise the issue of jurisdiction so as to  save   time and costs, and to avoid a trial in nullity.

15. The “locus classicus “ on jurisdiction is  the  celebrated case of THE  OWNERS  OF THE MOTOR VESSEL “LILLIAN’S VRS  CALTEY OIL  KENYA LTD ( 1989) KLR 1,where Nyarangi, J  Aheld;

“ I think that it is reasonably plain that a  question of   jurisdiction  ought to be raised at the earliest opportunity  and the court seized by the matter is then obliged to decide  the  issue right away on the material before it. Jurisdiction  is everything, without it, a court has no power to make one  more step. Where a court has no jurisdiction there would be   no basis for continuation of proceedings pending other  evidence.  A court of law downs tools in respect of the matter  before it  the moment it holds that it is without jurisdiction”

16. In the case of SAMUEL KAMAU MACHARIA VRS KCB AND  OTHERS   (2012) e KLR, the Supreme Court held that;

“ A court’s  jurisdiction  flows from either the Constitution or  legislation or both. Thus a court 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……the court  must operate  within the constitutional limits. It cannot  expand jurisdiction through judicial craft or innovation”

17. In raising this question of jurisdiction, what this court has in mind are  the provisions of Article 162 (2) of the Constitution and sections 12 and  87 of the Employment and Labour Relations Court.  Article 162 of the   Constitution   provides a follows;

(2) Parliament shall establish court with the status of    the High Court to hear and determine disputes relating to

(a) Employment and Labour Relations

18. Pursuant to Article 162 (2) of the Constitution, parliament   enacted the  Employment and Labour Relations Court Act, 2011 which provides at  section 12 (1) that;

“The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the  Constitution and  the provisions of the Act or any written law which extend jurisdiction to the  court  relating to employment  and labour relations including;

(a) Disputes relating  to or arising out of employment     between an employer and employee”

Section 87 (1) and (a) of the Employment Act provides;

(1 Subject to the provision of this Act whenever;

(a) and employer or employee neglects or refuses to fulfill a contract of service  or

(b) any question, difference or dispute arises as to the  rights  of  liabilities of either party;

Or  touching  any  misconduct, reflect or ill treatment  of  either party or any injury to the person or  property of  either,  under any contract  of service, the aggrieved party may  complaint  to the  labour office or  lodge a complaint  or suit  in the  industrial court.

(2) No court other than the Industrial court shall determine  any complainant or suit referred to in subsection (1).

19. The exclusivity of the jurisdiction of the Employment and labour  Relations Court vis a vis the High Court in relation to such disputes  was emphasized by the Supreme Court in the case of REPUBLIC   VRS  KARISA CHENGO & OTHERS, SUPREME COURT  PETITION NO. 5 OF 2015 (2017) e KLR where it held as follows;

“From a reading of the Constitution and these Acts of    Parliament, it is clear that a special cadre of courts,    with  sui generis jurisdiction, is provided for. We  therefore entirely concur with the court of Appeal’s decision that such parity of hierarchical stature does not imply  that  either  Environment and Land Court or Employment and Labour  Relations Court is the High court or vice versa. The three are different and  autonomous courts and excercise  different and distinct jurisdictions. As Article 165 (5) precludes the High court from entertaining matters reserved to the  Environment and Land Court and Employment and Labour Relations Court, it should, by the same token, be informed that the Environment and Land Court and   Employment and Labour Relations Court too cannot hear matters reserved to the jurisdiction of the High court”.

20. From the pleadings and evidence in the instant case, it is clear that the  appellant’s claim arose out of a work place injury based on  employment relationship between the Appellant and Respondent.

21. From the foregoing, this court declines jurisdiction to hear this Appeal  and transfer the same to the Employment and Labour Relations Court,  Mombasa for hearing and determination (see the case of DANIEL N  MUGENDI VRS KENYATTA UNIVERSITY AND 3 OTHERS,  NRB C. A  NO. 6 OF 2012 (2013) e KLR)

Costs shall be in cause.

Dated and delivered at Mombasa this 27th day of March, 2019.

LADY JUSTICE D. O. CHEPKWONY