In Juma Nyamawi Ndungo and ors. vs. the Attorney General  eKLR, the High Court of Kenya speaking through the Honourable Mr. Ogola, J, delivered its ruling on whether certain provisions of the Work Injury Benefits Act (WIBA) were in line with the Constitution. The Court found that several provisions of WIBA were in fact unconstitutional and therefore null and void.
WIBA was enacted in 2007 and came into force in 2008. After the passage of WIBA the Law Society of Kenya challenged the constitutionality of WIBA in the case of the Law Society of Kenya vs. Attorney General  eKLR by lodging in the High Court a constitutional petition challenging the constitutionality of various provisions vis a vis the repealed Kenyan Constitution. The same was heard on 4th March, 2009 and the Honourable Mr. Ojwang’ J (as he then was) declared Section 4, 7(1) (2), 10(4), 16(2) (1), 23(1), 25(1) (3), 52(1)(2) and 58(2) of the WIBA unconstitutional with respect to the former Constitution in force then. The Attorney-General preferred an appeal, i.e. Attorney General vs. Law Society of Kenya & Another  eKLR. As a consequence, the subordinate courts continued handling work injury cases until the 17th of November, 2017, when Court of Appeal by its decision in the said Attorney General vs. Law Society of Kenya & Another  eKLR overturned Mr. Ojwang’ J’s judgment aforesaid. The Court of Appeal held, inter-alia:
''In the end we allow the appeal to the extent that we set aside the learned Judge orders declaring Section 4, 16, 21(1), 23(1), 25(1), (3), 52(1) (2) and 58 (2) to be inconsistent with the former constitution. The result is that only sections 7 (in so far as it provides for the Minister’s approval or exemption) and 10(4) are inconsistent with the former and current constitution.''
In essence, what the Court of Appeal appeared to have said in that decision was that WIBA was, in fact, not unconstitutional and only section 7 of and 10 (4) of WIBA was against the Constitution. In holding as it did, the Court of Appeal decreed that magistrate’s courts had no jurisdiction to hear matters relating to work injuries and that the entity with the jurisdiction to hear such matters was the Director of Occupational Health and Safety. An injured employee aggrieved by the decision had a right, according to the Court of Appeal, to appeal the Director’s decision to the Employment and Labour Relations Court. After the decision of the Court of Appeal, various magistrate’s courts viewed themselves as lacking in jurisdiction.
This decision of the Court of Appeal has admittedly caused a lot of confusion in legal circles because prior to the said decision, many cases had been filed from the point when the High Court delivered its decision on 4th March, 2009 to the time the Court of Appeal delivered its decision on the 17th of November, 2017. From the point when the Court of Appeal delivered its decision, most magistrates have declined to proceed with the hearing of the work injury claims on the basis that WIBA divested them of jurisdiction and this affected the hearing of cases countrywide where the courts downed their tools. This state of affairs drove some five petitioners to file a petition challenging the constitutionality of WIBA. According to the petitioners, the Constitution of Kenya 2010 at article 159 provides that judicial authority is derived from the people and vests in and shall be exercised by the courts and tribunals established by or under the current Constitution. The petitioners averred that the office of the Director created under Section 53 of the WIBA is neither a court nor a tribunal.
The petitioners averred that in any event they lodged their claims pursuant to the subsisting law at the time, as the offending provisions of the WIBA had been declared unconstitutional between 2007 and November 2018 and that some claims predated the passage of WIBA. In summary the petitioners claimed that the provisions of WIBA had never been tested vis a vis the current Constitution and the decision of the High Court in Law Society of Kenya vs. Attorney General  eKLR that was overturned by the Court of Appeal in Attorney General vs. Law Society of Kenya & Another  eKLR was focused on the constitutionality of WIBA vis a vis the repealed Constitution and therefore the statements made in decision of the Court of Appeal which appeared to touch on the constitutionality of WIBA and the current constitution were obiter dicta. According to the petitioners WIBA was impliedly repealed by the Employment and Labour Relations Act and the Magistrate’s Courts Act.
The respondent was content on mostly arguing that the issues raised by the petitioners were canvassed before the Court of Appeal in Attorney General vs. Law Society of Kenya & Another  eKLR and were therefore, according to the respondent, res judicata.
The High Court on its part identified the following issues:
(i) Whether the High Court had the jurisdiction to try this matter;
(ii) Whether the petition is res judicata;
(iii) Whether WIBA is unconstitutional;
(i) Whether the High Court had jurisdiction to try this matter;
It is interesting that the High Court identified this as an issue. Interesting because from the court’s rendition of the pleadings and submissions of the parties, this issue did not seem to have been in contention between the parties before the court. In fact, at the interim stage, of the proceedings, the representative of the Honourable Attorney-General consented to interim orders being issued by the court, thus impliedly accepting the jurisdiction of the High Court in this regard. Despite the issue not having been canvassed the High Court felt the necessity to deal with it because in its own words:
''This issue is important because while no party raised it as a point of concern, there have (sic) been disquiet whether the High Court has the jurisdiction to declare an Employment and Labour Statute unconstitutional.''
Nevertheless, the High Court found itself to have jurisdiction and drew support for that view from the provisions of article 165 (3) (b) and (d) of the Constitution. The said provisions provide:
''Subject to clause (5), the High Court shall have—
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this 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;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191.''
The court stated in part as follows:
''This court is persuaded that it has the unmitigated jurisdiction under Article 165(3) (d) (i) & (ii) aforesaid to entertain and determine this petition. Further, this court is persuaded that the fact that the statute in question is an Employment and Labour Statute does not lessen the weight of the jurisdiction and authority granted to this court under the said Article 165.''
The court was, therefore, alive to the fact that there was a view that it may not have jurisdiction in employment and labour relations matters and so chose to pronounce that it had jurisdiction.
(ii) Whether the petition is res judicata;
The High Court found that the proceedings before it were not res judicata. In finding as it did, the court stated as follows:
''This Court has looked at the pleadings herein and confirms that the constitutional petition filed against WIBA was pleaded as per the then existing Constitution. The parties in that petition were only limited to what was pleaded and none of the parties referred in those pleadings to the 2010, Constitution as the same had not been promulgated. The High Court could not have been invited to subject WIBA to the yet to be born Constitution, and in my opinion no valid appeal would arise from what was not canvassed in the High Court. This is so because it is now trite that parties are bound by their pleadings.''
The court, thus implied that because the pleadings and submissions in previous High Court case, i.e. Law Society of Kenya vs. Attorney General  eKLR, were focused on the constitutionality of WIBA vis a vis the repealed Constitution, the comments the Court of Appeal made regarding the constitutionality of WIBA vis a vis the current constitution were obiter dicta, and as such the High Court was not bound by such comments.
(iii) Whether WIBA is unconstitutional;
On this point the High Court found that WIBA is unconstitutional on various fronts, i.e.:
• firstly, judicial power can only be vested in the judicial arm of Government and in Kenya according to the judge judiciary is made up of the courts and independent tribunals.
• Secondly, the provisions in WIBA violate the principle of separation of powers;
• Thirdly the provisions in WIBA are discriminatory as far as they subject a certain class of litigants to different judicial bodies, limitation laws etc.
• Fourthly, the provisions in WIBA violate the constitutional right to access to justice
• Fifthly, WIBA was inconsistent with various provisions of the Constitution, the Employment and Labour Relations Act and the Magistrate’s Court’s Act, in so far as it purported to do away with the jurisdiction of magistrates to hear matters relating to work injuries.
Our comments on the ruling will be surprisingly brief. The provisions of WIBA do not seem to measure up to the Constitution for the reasons identified by the Court. Further the doctrine of res judicata cannot apply to this case for the simple reason that, with the exception of the Attorney-General, the parties in Law Society of Kenya vs. Attorney General  eKLR were not the same parties in Juma Nyamawi Ndungo and ors. vs. the Attorney General  eKLR.
However, one issue arose that must be looked at. The High Court, with respect, does not seem to have jurisdiction to determine what the jurisdiction of a magistrate’s court is in employment and labour relations matters. The High Court is a creature of the Constitution and the Constitution creates three courts of original jurisdiction. However, none of these courts has "unlimited" jurisdiction in the true "common law” sense of the term. Yes, the three courts have unlimited jurisdiction in their respective areas of operation, but none has truly “unlimited” jurisdiction. This is why article 165 (3) of the Constitution starts with words, which did not seem to be addressed in the High Court’s ruling, i.e. "Subject to clause (5)".
Article 165 (5) of the Constitution, then provides that
''The High Court shall not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2).''
What are the matters contemplated in article 162 (2) of the Constitution? Article 162 (2) provides that
''Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land.''
What do the words “status of the High Court” mean? The words would appear to mean that the Employment and Labour Relations Court and the Environment and Land Court have, in their respective jurisdictions, the same status as the High Court. This would mean that if the High Court has unlimited jurisdiction in civil matters other than those mentioned in article 162 (2) of the Constitution, then the Employment and Labour Relations Court has unlimited jurisdiction in any matter relating to employment and labour relations, while the Environment and Land Court has unlimited jurisdiction in matters relating to environment and the use and occupation of, and title to, land.
The constitutional matter that was before the High Court was a matter relating to whether the magistrate's courts have jurisdiction in certain matters relating to employment and labour relations. The High Court, with respect, had no business determining that issue. That was for the Employment and Labour Relations Court to determine because it is the Employment and Labour Relations Court that has supervisory power over the magistrate’s court in any matter relating to employment and labour relations. The High Court does not have a supervisory jurisdiction over the Employment and Labour Relations Court or the Environment and Land Court and any constitutional matter touching on these courts should be brought before these courts.