Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2021] KEELRC 2 (KLR)

Maridadi Flowers Limited v Director of Occupational Safety and Health Service; Khisa (Interested Party) (Appeal 29 of 2018) [2021] KEELRC 2 (KLR)

Employment and Labour Relations Court
5 October 2021
HWHellen Wasilwa
3,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

An employer who refuses a further medical assessment offered under Kenya's Work Injury Benefits Act cannot later challenge the compensation decision in court.

What this practically means

#

Executive summary

#
This was an appeal to the Employment and Labour Relations Court against a decision of the Director of Occupational Safety and Health Services (DOSHS) made under the Work Injury Benefits Act (WIBA). The interested party, an employee of the appellant flower farm, suffered an eye injury on September 14, 2017 when a drop of solution ('white fly') entered his eyes while grading flowers. He was diagnosed with chemical conjunctivitis and ultimately lost vision in the right eye with partial loss in the left. The employer filed the statutory notification (ML/DOSH/WIBA Form 1) and a doctor assessed permanent incapacity at 30%, recommending a further examination after three months. The Director nonetheless assessed compensation at Kshs 512,284 on May 25, 2018 and issued a DOSH/WIBA 3 notice. The appellant objected; by a letter of November 6, 2018 the Director directed a final assessment by a panel he would constitute, at the venue of Safety House, Nairobi, with the employer bearing the costs, and computation of the final award thereafter. The appellant filed this appeal contending the Director erred in failing to hold an inquiry, making a premature assessment, disregarding its objection, and ordering it to bear assessment costs contrary to section 53 of WIBA. Justice Hellen Wasilwa, re-evaluating the evidence as required in a first-instance appeal, held that the Director followed the WIBA procedure: the accident was reported, an inquiry/investigation was undertaken, and the employee was medically examined. Although the award preceded the recommended three-month re-examination, the Director offered a further assessment by a mutually chosen doctor which the appellant refused, thereby forfeiting the right to complain. The court held that requiring the employer to bear the assessment costs was proper. The appeal was dismissed, the Director's decision confirmed, with costs to the respondent and interested party. The judgment contains minor internal inconsistencies in names, dates and statutory quotation.

Key legal issues

#
01

Whether the Director erred in failing to conduct an inquiry into the alleged accident

Holding

The court found that the Director did make an inquiry/investigation; the employee was examined by a doctor prescribed by the Director and a decision was made as guided by the law

Reasoning

The court traced the WIBA scheme: the employer reports, the Director inquires and may investigate, the employee is medically examined, and a decision is made. On the evidence, the interested party was examined by a doctor designated by the Director who made recommendations, and the Director proceeded on that basis. The employer's own Form 1 notification and engagement of Dr Amunga amounted to an admission that an accident occurred, undermining its demand for an inquiry.

p. 8
02

Whether the Director's assessment of May 25, 2018 was premature given the doctor's recommendation of a further assessment after 3 months

Holding

Although the decision was made before the 3 months elapsed, the Director offered a remedy - a further assessment by a panel of doctors - which the appellants refused, so they could not complain

Reasoning

The court acknowledged that Dr Munga had directed a final decision be made after 3 months and that the Director did make a decision before then. However, the Director offered a solution of a further assessment by another doctor chosen jointly, and the appellants refused. A new doctor of the appellant's choice would have allayed their fears. Having declined that option and rushed to court, the appellants could not establish error.

p. 2
03

Whether the Director had statutory power to direct the appellant to bear the costs of the final assessment

Holding

The court held that requiring the employer to bear the costs of the further assessment was proper because it was for the employer's benefit

Reasoning

The appellant argued that section 53 of WIBA does not empower the Director to order payment of costs. The court disagreed in substance, reasoning that the assessment was for the appellant's benefit and that the law contemplates that a party seeking assessment by a doctor of its choice bears the costs. The court did not engage in detailed statutory construction of section 53.

p. 9

Legal principles established

#
  • An employer who has reported an accident and has been offered a further medical assessment by a doctor of its choice cannot later complain of the Director's assessment having declined that option
  • The employer properly bears the costs of a further assessment for its own benefit, just as an employee who wants a doctor of their choice bears the costs

Court orders

#
  1. 1.The decision of the Director dated November 6, 2018 is confirmed
  2. 2.The appeal is dismissed with costs to the respondent and the interested party

Authorities

#

Legislation

  • Work Injury Benefits Actsection 21
  • Work Injury Benefits Actsection 22
  • Work Injury Benefits Actsection 23
  • Work Injury Benefits Actsection 30(3)
  • Work Injury Benefits Actsection 51
  • Work Injury Benefits Actsection 52
  • Work Injury Benefits Actsection 53
  • Occupational Safety and Health Actsection 112

Cases cited (2)

  • Samuel Kamau Macharia and another v Kenya Commercial Bank Limited 72 others
    [2013] eKLR
  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
On appeal from
Office of the Director of Occupational Safety and Health Services (DOSHS)
Accident Register No. WIBA/NSA/7360
Jurisdiction invoked
Appeal against a decision of the Director of Occupational Safety and Health Services under the Work Injury Benefits Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Maridadi Flowers Limited v Director of Occupational Safety and Health Service; Khisa (Interested Party) (Appeal 29 of 2018) [2021] KEELRC 2 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2/eng@2021-10-05

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