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ELRCPartially AllowedAppeal from Nairobi CMCC No. 2192 of 2019

Twiga Construction Company Limited v Osoro (Appeal E068 of 2020) [2023] KEELRC 1080 (KLR)

High Court of Kenya
27 April 2023
2,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a High Court appeal against a ruling by Honourable P. Muholi, Senior Resident Magistrate, delivered on 23rd September 2020 in Nairobi CMCC No. 2192 of 2019, in which the magistrate declined to uphold the defendant's preliminary objection that the trial court lacked jurisdiction over a work injury claim under the Work Injury Benefits Act 2007 as construed by the Supreme Court in Law Society of Kenya v The Attorney General & another (Petition No. 4 of 2019). Twiga Construction Company Limited appealed, seeking setting aside of the ruling, referral of the respondent's claim to the Director of Occupational Safety and Health Services, or striking out of the suit. The respondent submitted that his suit, filed on 29th March 2019, was lodged while sections 16 and 58 of WIBA stood declared unconstitutional by Ojwang' J., a declaration not stayed or set aside until the Court of Appeal's decision of 17th November 2017 and the Supreme Court's determination of 3rd December 2019, and that he therefore held a legitimate expectation to conclude his claim in court. Nzioki wa Makau J agreed with Radido J.'s exposition in West Kenya Sugar Co Ltd v Tito Lucheli Tangale that claims lodged between 22nd May 2008 and 3rd December 2019, underpinned by judge-declared law, were validly within the courts' jurisdiction. The appeal was dismissed in its core, but the Court, in light of the Supreme Court decision and the passage of time, referred the plaintiff's claim to the Director of Occupational Safety and Health for assessment and award. Each party bears their own costs of the motion in the appeal; the appellant bears the respondent's lower court costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate erred in holding that he had jurisdiction to hear the respondent's work injury suit filed on 29th March 2019 notwithstanding the Supreme Court decision in Law Society of Kenya v The Attorney General & another
  2. 2.Whether the principle of legitimate expectation applied to a suit filed in 2019, eleven years after commencement of the WIBA 2007
  3. 3.Whether the Preliminary Objection dated 28th May 2020 should have been upheld and the suit referred to the Director of Occupational Safety and Health Services or struck out

Key legal issues

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01

Jurisdiction of the magistrate's court over a WIBA-era work injury claim filed on 29th March 2019

Holding

The magistrate had jurisdiction because at the time of filing, sections 16 and 58 of WIBA had been declared unconstitutional by the High Court and that declaration had not been stayed or set aside

Reasoning

The Court adopted Radido J.'s exposition in West Kenya Sugar Co Ltd v Tito Lucheli Tangale: a litigant may rely on judge-declared law until it is set aside or vacated. The High Court declaration of unconstitutionality stood from 2009 until the Court of Appeal reinstated the provisions on 17th November 2017 and the Supreme Court determined the matter on 3rd December 2019. The respondent's suit of 29th March 2019 was therefore lodged on the strength of valid judge-declared law.

p. 5
02

Applicability of legitimate expectation to the respondent's claim

Holding

The respondent, having filed suit while the unconstitutionality declaration stood, held a legitimate expectation that his case would be concluded under the judicial process he had invoked

Reasoning

The Court aligned itself with Radido J.'s Kisumu ELRC Appeal ruling that claimants who filed suits between 22nd May 2008 and 3rd December 2019 on the belief that judge-declared law was valid were entitled to assert legitimate expectation in having their claims heard to conclusion before the courts where lodged. The magistrate therefore did not err in applying that principle.

p. 5
03

Referral of the claim notwithstanding dismissal of the appeal

Holding

Although the appeal failed, the Court, in light of the Supreme Court decision and effluxion of time, referred the respondent's claim to the Director of Occupational Safety and Health for assessment and award

Reasoning

For the proper administration of justice and given the time elapsed, the Court exercised its discretion to refer the claim to the statutory forum for assessment and award, while simultaneously holding that the magistrate's ruling on jurisdiction was correct and declining to disturb it.

p. 5

Legal principles established

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  • Claims lodged with the courts between 22 May 2008 and 3 December 2019, underpinned by judge-declared law holding section 16 of WIBA unconstitutional, were validly within the courts' jurisdiction
  • Until set aside or vacated, judge-declared law is valid and citizens may order their affairs on the strength of it

Court orders

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  1. 1.Appeal dismissed; the Court declined to interfere with the decision of the Learned Magistrate
  2. 2.The Plaintiff's claim referred to the Director Occupational Safety and Health for an assessment and award per the provisions of the law
  3. 3.Each party to bear their own costs of the motion in the appeal
  4. 4.The Appellant to bear the Respondent's (Plaintiff's) costs in the lower court
  5. 5.Ruling to be availed to the Learned Magistrate for records

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi
Nairobi CMCC No. 2192 of 2019
Jurisdiction invoked
Appellate jurisdiction over a ruling of the Chief Magistrate's Court under the Work Injury Benefits Act 2007 regime

Relief refused

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Setting aside the Ruling of the Learned Magistrate made on 23rd September 2020

The Court found the magistrate correctly applied the law on judge-declared law and legitimate expectation

p. 5

Striking out the suit for want of jurisdiction

The suit filed on 29th March 2019 was lodged while section 16 of WIBA had been declared unconstitutional by Ojwang' J. and before its reinstatement on 3rd December 2019

p. 4

Costs

Each party to bear their own costs of the motion in the appeal, but the Appellant will bear the Respondent's (Plaintiff's) costs in the lower court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the foregoing, the Court finds no merit in the Appeal. The Learned Magistrate did not fall into error of law or fact in finding that he had the jurisdiction to proceed with the suit before him. As such I would decline to interfere with the decision of the Learned Magistrate.
p. 5dismissal of appeal and affirmation of magistrate's ruling
On the issue of costs, each party will bear their own costs of the motion in the appeal but the Appellant will bear the Respondent’s (Plaintifi’s) costs in the lower court as misapprehension of the law is what has led to this impasse. Ruling hereof to be availed to the Learned Magistrate for records. It is so ordered.
p. 5final orders on referral and costs
In the Court's respectful view, bar any stay orders, all claims which were lodged with the Courts from 22 May 2008 to 3 December 2019 being claims underpinned by judge-made or judge declared law were validly within the jurisdiction of the Courts.
p. 4jurisdiction of courts over WIBA claims filed during unconstitutionality window
until set aside and or vacated, a Court order and this includes judge-made law or judge declared law is valid, and a litigant or citizen can order his or her life in the firm belief that the declared law is the law at the particular point in time.
p. 4validity of judge-declared law until set aside

Issues in the judgment

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minor

The opening paragraph mislabels the appellant as 'Appellant/Plaintifi' although the appellant is the Defendant in the lower court (Twiga Construction Company Limited) and the respondent is the Plaintiff

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Twiga Construction Company Limited v Osoro (Appeal E068 of 2020) [2023] KEELRC 1080 (KLR)", Case Analysis (2023). Appeal from Nairobi CMCC No. 2192 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1080/eng@2023-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.