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ELRCDismissedMemorandum of Appeal filed 31.10.2018 (ELRC, Nairobi)· [2021] KEELRC 1769 (KLR)

Ahmed Abdullahi Musa v Director of Occupational Safety and Health Services & another [2021] KEELRC 1769 (KLR)

Employment and Labour Relations Court
6 May 2021
OMOnesmus N. Makau
4,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The ELRC dismissed a police officer's bid to increase his work injury compensation, ruling that medical reports made years after an accident cannot beat original treatment records.

What this practically means

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Executive summary

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The Appellant, an Administration Police Officer, was involved in a road traffic accident on 5.12.2012 along the Khorof-Harar Road, sustaining injuries to his chest, right upper arm and neck, and was admitted at Wajir District Hospital. His attending physician assessed permanent incapacity at 50%, but the 1st Respondent's Work Injury Evaluation Clinic reduced this to 15%. The Appellant sought review, and a second WIEC on 2.11.2015 upheld 15%, finding the lumbar spine pathology demonstrated in later MRI reports was unlikely to have been accident-related. On 16.11.2015 the Director declined jurisdiction, citing the High Court decision nullifying section 52 of WIBA, and advised the Appellant to approach the Court. The Appellant instead sought treatment in India and obtained a 60% assessment from Dr. Wangata in 2018. After the Court of Appeal reinstated section 52 of WIBA (affirmed by the Supreme Court), the Director's letter of 1.10.2018 treated the matter as fully settled. The Appellant appealed to the ELRC, seeking enhancement of his disability assessment up to 90%. The 2nd Respondent raised a preliminary objection on jurisdiction. The Court held that the Director's letter of 1.10.2018 constituted the response under section 52(1) WIBA, entitling the Appellant to appeal under section 52(2), so the Court had jurisdiction. On the merits, applying the principle that late medical reports unsupported by initial treatment records are of little help, the Court found the primary records showed no lumbar spine injury and held the Director did not err. The appeal was dismissed with no costs.

Key legal issues

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01

Jurisdiction of the ELRC over the appeal against the Director's decision

Holding

The Court had jurisdiction under section 52(2) WIBA; the Director's letter of 1.10.2018 constituted the response contemplated by section 52(1), completing the objection proceedings frustrated by the earlier nullification of section 52

Reasoning

The 19.10.2015 letter constituted an objection under section 51 WIBA. The Director declined to decide it on 16.11.2015 because section 52 had been declared unconstitutional. After the Court of Appeal reinstated section 52 and the Supreme Court affirmed that decision, the Director's 1.10.2018 letter served as the section 52(1) response. The appellant, being aggrieved, could appeal under section 52(2). The prescribed procedure was therefore followed and the Court had jurisdiction.

p. 5
02

Whether the Director erred in upholding the 15% permanent incapacity assessment

Holding

No error was demonstrated; injuries not recorded in primary treatment records could not be factored into the assessment of permanent incapacity

Reasoning

All primary treatment records (Discharge Summary, P3 Form, DOSH WIBA Form 1) showed only neck, chest and upper arm injuries with no lumbar spine injury. Dr. Gikenye and Dr. Wangata examined the appellant 4 and 6 years after the accident and their reports were unsupported by initial treatment records. The WIEC doctors found the lumbar pathology unlikely to relate to the accident. The Director correctly relied on primary records and excluded the late reports.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • Where a procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, it must be strictly followed; a court cannot arrogate to itself jurisdiction exceeding that conferred by law
  • A medical report by a doctor who examines a claimant long after an accident is of little help unless supported by the initial treatment records

Court orders

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  1. 1.The appeal was dismissed with no costs

Authorities

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Legislation

  • Work Injury Benefits Act (WIBA)section 51(1)
  • Work Injury Benefits Act (WIBA)section 52(1) and (2)
  • Work Injury Benefits Act (WIBA)section 23(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Attorney General v Law Society of Kenya & another
    Nairobi Civil Appeal No. 133 of 2011; [2017] eKLR
  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    Civil Application No.2 of 2011; [2013] eKLR
  • Kenya Ports Authority vs Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Timsales Ltd V Wilson Libuywa
    [2008] eKLR
  • GAS Kenya Limited v Amber Enterprises Limited
    [2020] eKLR
On appeal from
The Director, Department of Occupational Safety & Health (administrative decision under WIBA)
letter dated 1.10.2018
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act (WIBA) - appeal to the Industrial Court (ELRC) from the Director's decision on an objection under section 51

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ahmed Abdullahi Musa v Director of Occupational Safety and Health Services & another [2021] KEELRC 1769 (KLR)", Case Analysis (2021). Memorandum of Appeal filed 31.10.2018 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1769/eng@2021-05-06

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