Case ID:166615

Festo Sivoni Masikini v Barkresa Grain Milling (K) Limited [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 99 of 2016

Parties:

Festo Sivoni Masikini Alias Festo Sivano Maskini v Barkresa Grain Milling (K) Limited

Date Delivered:

18 Nov 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Festo Sivoni Masikini v Barkresa Grain Milling (K) Limited [2020] eKLR

Case History:

Being an Appeal from the whole Judgment of the Honourable H. Nyakweba (SPM) delivered on 28th June, 2016 in SRMCC No.40 of 2015

Court Division:

Civil

County:

Mombasa

History Docket No:

SRMCC 40 of 2015

History Magistrate:

Honourable H. Nyakweba (SPM)

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 99 OF 2016

FESTO SIVONI MASIKINI alias FESTO SIVANO MASKINI.................APPELLANT

VERSUS

BARKRESA GRAIN MILLING (K) LIMITED........................................RESPONDENT

(Being an Appeal from the whole Judgment of the Honourable H. Nyakweba (SPM)

delivered on 28

th

June, 2016 in SRMCC No.40 of 2015)

RULING

1. Before this Court for determination is an Application dated

19.8.2020

brought under the provisions of

Sections 1A, 1B, 3A

and

63(e)

all of the

Civil Procedure Act, Order 2 rule 15(1)(c)

and

(d)

and

Order 42

rule 13

both of the

Civil Procedure Rules

and all other enabling provisions of the law seeking the following orders:-

a) That this Honourable Court be pleased to strike out the Memorandum of Appeal dated 26

th

July, 2016 and filed in court on 26 July, 2016;

b) That costs of this application and appeal be borne by the Appellant/Respondent;

c) That this Honourable Court be pleased to issue any other or further orders as it may deem fit and just to grant.

2. The application is supported by the

Affidavit

of

Immaculate Baraza

sworn on

19

th

August, 2020

and the grounds in support of the application.

3. The Appellant (Respondent) filed a

Replying Affidavit

sworn on

25

th

September, 2010

by

Pauline Awino Osino,

who is the Appellant’s advocate.

4. The Respondent in her

Replying Affidavit

at

paragraph 5

admits that the instant

Appeal

was one of the matters affected by

Civil Appeal No.

287 of 2018

consolidated with

Civil Appeal No.3 of 2017,

Law Society of Kenya Nairobi Branch..Vs…Malindi Law Society & 6 Others [2017]eKLR,

during the period between

11

th

November, 2016

and

19

th

October, 2017

.

Analysis and Determination

5. I have considered the application dated

19

th

August 2020

, the respective Affidavits by both parties, the pleadings of the Lower Court and Memorandum of Appeal. According to the pleadings filed in the Lower Court, and the

Memorandum of Appeal

filed on

26

th

July, 2016

, it is clear that the

Appeal

is in respect of a dispute relating to a

work injury

claim as set out at

paragraph 3, 4 & 5

of the

Plaint

dated

13

th

January, 2015

and

ground 4

of the

Memorandum of Appeal

.

6. It is noteworthy that jurisdiction is everything and whether this court has or lacks jurisdiction to entertain a matter, it is a matter of the law that must be dealt with before all else. In the case of

Owners of the Motor Vessel “Lilian S”…Vs...Caltex Oil (Kenya) Limited [1989]KLR 1,

Nyarangi, JA

expressed himself as follows:

“

Jurisdiction is everything without which a court of law has no

power to make one more step where a court of law has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction.”

7. However, the starting point must be the constitutional provisions set at

Articles 162(2)

and

165(5)

of the

Constitution, 2010

, which I consider oust the jurisdiction of the High Court from entertaining disputes reserved for the

Employment and Labour Relations Court

8. Under

Article 162(2)

of the

Constitution

as read with

Section 12(1)

of the

Employment and Labour Relations Act, 2011,

the ELRC has exclusive jurisdiction to hear Appeals from Lower Courts and Tribunals on Labour and Employment disputes. The issue of jurisdiction of the ELRC vis-à-vis the High Court in relation to disputes between employer and employee was dealt with by the Supreme Court in the case of

Republic…Vs…Karisa Chengo & Others,

Supreme Court Petition No.5 of 2015 [2017]eKLR,

where it was held as follows:

“[52] 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 exercise 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 inferred that the Environment and Land Court and Employment and Labour Relations Court too cannot hear matters reserved to the jurisdiction of the

High Court.

”

9. From the foregoing, this Court has no hesitation but to find that work injury claim is an employment underpinned matter, hence a reserve of the exclusive jurisdiction of the Employment and Labour Relations Court and not the High Court. It is a reserve for that court because the entire claim was grounded upon alleged breach of Contract leading to the injury pleaded.

10. Accordingly, this Court declines jurisdiction to hear this

Appeal

and order that the same be transferred to the

Employment and Labour Relations Court, Mombasa,

for final determination.

11. Costs shall abide the outcome of the

Appeal

because the issue of jurisdiction has been raised at the instance of the Court.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

MOMBASA

on this

18

th

day of

NOVEMBER

, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE