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ELRCAllowedELRC Cause (Mombasa) filed 26th September 2016, Memorandum of Claim dated 23rd September 2016· [2022] KEELRC 105 (KLR)

Justine & another v New Generation Stores Limited (Cause 716 of 2016) [2022] KEELRC 105 (KLR)

Employment and Labour Relations Court
9 June 2022
ANAgnes Kitiku Nzei
1,395 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 it can convert a WIBA compensation assessment into an enforceable judgment when employers refuse to pay injured workers or their families.

What this practically means

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Executive summary

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The Claimants, personal representatives of the estate of Justine Mwarabu Chengo, sued the Respondent employer under the Work Injury Benefits Act (WIBA), claiming that the deceased died in the course of employment on 12th September 2014 in a road accident while driving the Respondent's vehicle. The accident was reported under Section 21 of WIBA and, following an inquiry under Sections 22 and 23, the Director of Occupational Safety and Health Services assessed compensation at Ksh.2,400,000. A demand under Section 30 of WIBA was issued but the Respondent refused or neglected to pay. The Claimants sought judgment for the assessed sum plus costs and interest. The Respondent was served but entered no appearance or defence, and the matter proceeded by formal proof before Ndolo, J and later Nzei, J. On the Court's own motion the Director WIBA was summoned; an Assistant Director confirmed authorship and validity of the DOSH/WIBA4 Form and that the assessed sum was never paid. The sole issue was whether the Court could enter judgment in terms of the Director's assessment. Relying on its own prior decisions, the Court held it has inherent jurisdiction under Article 162(2) of the Constitution and Section 12 of the ELRC Act to adopt the Director's award as judgment for execution where no objection under Section 51(1) or appeal under Section 52(2) of WIBA has been mounted. Judgment was entered for the Claimants for Ksh.2,400,000 with costs and interest at Court rates.

Key legal issues

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01

Whether the ELRC may enter judgment in terms of the Director of Occupational Safety and Health Services' compensation assessment under WIBA

Holding

Yes, where no objection or appeal has been lodged against the Director's decision, the Court has inherent jurisdiction to adopt the Director's award as judgment for purposes of execution.

Reasoning

WIBA is silent on enforcement of the Director's assessment. The Court, endowed with unlimited original jurisdiction under Article 162(2) of the Constitution and Section 12 of the ELRC Act, has inherent jurisdiction to adopt the Director's award for execution. This is distinct from appellate jurisdiction under Section 52(2) WIBA. Liability and quantum having been determined by the Director under Section 23, adopting the award does not contravene Section 16 of WIBA.

p. 3
02

Whether the Respondent challenged or paid the assessed compensation

Holding

The Respondent, though served, neither defended the suit nor objected to the Director's decision, and did not pay the assessed Ksh.2,400,000.

Reasoning

The Director's Assistant Director (CW2) confirmed the validity of the DOSH/WIBA4 Form assessment of Ksh.2,400,000 and that demand was made but unpaid. The Respondent, served with court documents, entered no appearance and was not shown to have objected within the prescribed time or at all, leaving the assessment unchallenged.

p. 3

Legal principles established

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  • Where an employer does not object to the Director's assessment under WIBA and fails or refuses to pay, the employee may move the Court to adopt the Director's award as judgment for execution.
  • Entering judgment in terms of the Director's assessment does not contravene Section 16 of WIBA since liability and quantum are already determined by the Director.

Court orders

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  1. 1.Judgment entered in favour of the Claimants against the Respondent for Ksh.2,400,000 being the amount assessed by the Director of Occupational Safety and Health Services
  2. 2.Claimants awarded costs of the suit
  3. 3.Interest at Court rates on the awarded sum
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; 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, "Justine & another v New Generation Stores Limited (Cause 716 of 2016) [2022] KEELRC 105 (KLR)", Case Analysis (2022). ELRC Cause (Mombasa) filed 26th September 2016, Memorandum of Claim dated 23rd September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/105/eng@2022-06-09

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