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ELRCDismissedNot stated in judgment (Notice of Motion dated 24th January, 2020 with Memorandum of Claim)· [2020] KEELRC 847 (KLR)

Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR)

Employment and Labour Relations Court
25 June 2020
MMM. Mbaru
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A worker lost his right to enforce a Ksh.691,277 workplace injury award because he waited too long to go to court.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent, sustained a work-related injury on 23rd March, 2015 while driving the respondent's tractor, suffering severe burns to his face and hands with 20% permanent disability. The Director of Occupational Health and Safety assessed the claim and on 11th August, 2015 awarded him Ksh.691,277. The respondent did not pay or appeal. The claimant filed a notice of motion dated 24th January, 2020 seeking enforcement of the award with interest at 14% per annum, invoking section 87 of the Employment Act since WIBA provides no enforcement mechanism. The respondent, through Sandro Spencer, admitted the employment and award but contended that Ksh.272,875 had been paid - Ksh.122,875 in 2018 and Ksh.150,000 on 5th February, 2019 against a signed discharge voucher - and that the suit was time barred under section 90 of the Employment Act. The claimant maintained those payments related to a second accident on 23rd November, 2015, the subject of Eldoret CMCC No.1203 of 2019. The court framed three issues: limitation, payability of the award, and costs. It found the award uncontroverted but held the discharge voucher vague and ambiguous, incapable of confirming partial settlement. Because WIBA and OSHA lack enforcement mechanisms, enforcement lies under section 87 of the Employment Act, making section 90's three-year limitation applicable; the claim filed on 24th January, 2020 was out of time and the court lacked jurisdiction. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the claim is time barred under section 90 of the Employment Act

Holding

Yes - the claim filed on 24th January, 2020 to enforce an award of 11th August, 2015 was way out of the three-year period, denying the court jurisdiction

Reasoning

All claims premised under the Employment Act are subject to section 90. Since enforcement of a DOSHS award proceeds under section 87 of the Employment Act because WIBA and OSHA provide no enforcement mechanism, the cause of action arose on 11th August, 2015 and the claim ought to have been filed by 10th August, 2019. The claimant never addressed the time lapse. The ambiguous partial payments could not extend time.

p. 3
02

Whether the DOSHS award is payable as claimed

Holding

The court did not reach the merits; the claim failed on limitation although the award itself was not contested

Reasoning

It was not contested that the claimant was injured on 23rd March, 2015 and awarded Ksh.691,277 by the Director on 11th August, 2015. However, the discharge voucher and payments of Ksh.272,875 were vague and ambiguous and did not speak to the partial settlement of the Director's award, possibly relating instead to a second accident of 23rd November, 2015 subject of Eldoret CMCC No.1203 of 2019.

p. 3

Legal principles established

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  • Claims to enforce a DOSHS award under WIBA are filed under section 87 of the Employment Act and are therefore subject to the three-year limitation period in section 90 of that Act.
  • A discharge voucher that is vague and ambiguous cannot be treated as a partial settlement of a Director's award so as to extend the limitation period.

Court orders

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  1. 1.The claim to enforce the Director's award of 11th August, 2015 is dismissed as time barred pursuant to section 90 of the Employment Act, 2007
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Sections 87 and 90 of the Employment Act, 2007; sections 51 and 52 of the Work Injury Benefits Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 24th January, 2020 with Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/847/eng@2020-06-25

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