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ELRCDismissedNot stated in judgment· [2020] KEELRC 1877 (KLR)

Stephen Kariuki Waithaka v Nairobi Bottlers Limited [2020] KEELRC 1877 (KLR)

Employment and Labour Relations Court
17 January 2020
RSRadido Stephen
469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed you can sue to enforce a workplace injury compensation award already assessed by the Director, even though suing for damages is barred.

What this practically means

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Executive summary

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The Claimant sued the Respondent on 14 November 2017 for failure to pay his full terminal benefits, including the balance of compensation awarded on 9 June 2016 by the Director of Occupational Health and Safety under the Work Injury Benefits Act for workplace injuries. On 19 September 2019 the Respondent filed a Notice of Preliminary Objection contending that the Claim was misconceived, fatally defective and bad in law by virtue of section 16 of WIBA, and that the Court lacked jurisdiction. The Court directed the parties to exchange submissions, which were duly filed. The Court held that the cause of action on that limb of the Statement of Claim was not an action for damages prohibited by section 16 of WIBA, but an action to enforce payment of compensation already assessed by the Director of Occupational Health and Safety. It accordingly found the preliminary objection without merit. The Court noted the Claimant's reliance on the High Court decision in Juma Nyamwawi Ndungo & 5 Ors v Attorney General and the Supreme Court's sentiments in Law Society of Kenya v the Attorney General on the legal soundness of that decision, but its ruling turned on the character of the cause of action. The objection was dismissed with costs to the Claimant, and directions were issued for the filing of witness statements and documents by 29 January 2020, agreed issues before 14 February 2020 (defaulting to the Claimant's proposed issues), and a hearing date to be taken in the registry after compliance.

Key legal issues

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01

Whether an action to enforce payment of compensation assessed under WIBA is barred by section 16 of the Act

Holding

The preliminary objection was without merit; the cause of action was to enforce payment of compensation, not an action for damages barred by section 16.

Reasoning

The Director of Occupational Health and Safety had assessed compensation payable to the Claimant. The Claimant sued for the unpaid balance. Section 16 prohibits actions for damages for workplace injuries, but a suit to enforce payment of compensation already assessed is of a different character and falls outside that prohibition, so the objection failed.

p. 1

Legal principles established

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  • Section 16 of WIBA prohibits actions for damages for workplace injuries but not actions to enforce payment of compensation already assessed by the Director of Occupational Health and Safety.

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with costs to the Claimant
  2. 2.The Respondent to file and serve its witness statements and documents on or before 29 January 2020
  3. 3.Agreed Issues to be filed before 14 February 2020, in default, Issues as proposed by Claimant will be adopted for trial
  4. 4.Hearing date to be taken in the registry after compliance with these directions

Authorities

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Legislation

  • Work Injury Benefits Actsection 16

Cases cited (2)

  • Juma Nyamwawi Ndungo & 5 Ors v Attorney General
    (2019) eKLR
  • Law Society of Kenya v the Attorney General & Ar
    (2019) eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the claim; the objection challenged it under section 16 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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Cite this brief

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Cite this brief

Caselaw, "Stephen Kariuki Waithaka v Nairobi Bottlers Limited [2020] KEELRC 1877 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1877/eng@2020-01-17

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