Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the judgment· [2021] KEELRC 675 (KLR)

Felix Makori Omosa v Manji Food Industries Limited [2021] KEELRC 675 (KLR)

Employment and Labour Relations Court
22 October 2021
OMOnesmus N Makau
1,268 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who ignored a workplace injury compensation assessment for over two years must now pay Kshs. 2.17 million with interest and costs.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nakuru (Onesmus N Makau, J) determined a Notice of Motion dated 2.9.2020 seeking adoption as judgment of the court of an assessment of Kshs. 2,173,344 made by the Principal Occupational Health and Safety Officer on 3.9.2018 under the Work Injury Benefits Act, together with interest and costs. The applicant, a factory employee, was injured on 1.12.2016 when he slipped and fell onto a metal object in the course of his duties; his compensation was assessed under WIBA but the respondent refused or neglected to pay. The respondent opposed the application through a preliminary objection and replying affidavit, contending that the applicant had abandoned the WIBA claim and filed suit in the magistrate's court (CMCC No. 8876 of 2019), so the present application was sub judice and an abuse of process. The court framed two issues: whether the application violated section 6 of the Civil Procedure Act, and whether it should be allowed. On the first, the court held that the sub judice rule applies only where the prior suit is pending before a court of competent jurisdiction; since ordinary courts lack jurisdiction to assess WIBA compensation following the Court of Appeal's pronouncement, the lower court suit could not bar the enforcement proceedings, and the preliminary objection failed. On the second, the court noted the respondent conceded service of the assessment and never lodged an objection within sixty days under section 51(1) of WIBA. The court therefore adopted the assessment as judgment of the court, awarded interest from the date of filing the application, and awarded the applicant costs of the application.

Key legal issues

#
01

Whether the instant application was sub judice in view of the pending lower court suit CMCC No. 8876 of 2019

Holding

The preliminary objection fails; the lower court has no jurisdiction to assess WIBA compensation, so the pending suit there does not bar these enforcement proceedings.

Reasoning

The Court of Appeal having pronounced that ordinary courts lack jurisdiction to assess compensation for WIBA claims, the lower court suit could not proceed. Section 6 of the Civil Procedure Act requires the previously instituted suit to be before a court of competent jurisdiction. Since the magistrate's court cannot assess WIBA damages, the present enforcement proceedings before the ELRC do not violate section 6, and the preliminary objection falls away.

p. 2
02

Whether the DOSH assessment of Kshs. 2,173,344 should be adopted as judgment of the court

Holding

Yes. The respondent was served with the assessment but never lodged an objection under section 51 of WIBA within sixty days, so the assessment is adopted as judgment with interest and costs.

Reasoning

Section 51(1) of WIBA permits any person aggrieved by a decision of the Director to lodge an objection within sixty days. The respondent acknowledged receipt of the assessment of Kshs. 2,173,344 and conceded it did not object. Having failed to challenge the award in the manner prescribed by the statute, the respondent cannot resist enforcement, and the court adopts the assessment as its judgment.

p. 2

Legal principles established

#
  • The sub judice rule under section 6 of the Civil Procedure Act can only be invoked where the previously instituted proceedings are pending before a court of competent jurisdiction.
  • A party who does not lodge an objection under section 51 of WIBA within sixty days cannot resist adoption of the Director's assessment as a judgment of the ELRC.

Court orders

#
  1. 1.Adoption as judgment of this court of the assessment of damages by the Principal Occupational Health and Safety Officer dated 3.9.2018 being Kshs. 2,173,344
  2. 2.Award of interest at court interest from the date of filing the application
  3. 3.Costs of the application awarded to the applicant

Authorities

#

Legislation

  • Employment and Labour Relations Court ActSection 12
  • Work Injury Benefits ActSections 16, 37, 51(1)
  • Civil Procedure ActSection 6
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Exparte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Sections 16, 37 and 51 of the Work Injury Benefits Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "Felix Makori Omosa v Manji Food Industries Limited [2021] KEELRC 675 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/675/eng@2021-10-22

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