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ELRCPartially AllowedCause No 1332 of 2015· [2022] KEELRC 215 (KLR)

Samuel Otieno Musumba v Industrial & another [2022] KEELRC 215 (KLR)

Employment and Labour Relations Court of Kenya
21 March 2022
4,688 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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A Kenyan worker injured on the job won enforcement of a Kshs. 1.79 million work injury award after his employer ignored it and missed its appeal window.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a Driver rising to Senior Office Assistant/Driver, sued for work-related back injuries. He reported the injuries to the Director of Occupational Safety and Health Services under Claim No. WIBA/NBI/884/2013, and on 4th July 2013 the Director awarded him Kshs. 1,789,171. The Respondent neither paid the award nor successfully challenged it: its objection was lodged outside the 60-day period under section 51 of the Work Injury Benefits Act, was declined, and it never appealed under section 52(2). The Respondent's case was that the degenerative back condition was not work-related, supported by Dr. Byakika's evidence. The court framed four issues and held that the Director duly determined liability and quantum, that the decision stood unassailed, and that the ELRC has jurisdiction to enforce WIBA awards in the absence of a prescribed enforcement mechanism, applying Glyde Khatete Okwaro and the Supreme Court's decision in Law Society of Kenya v Attorney General. Judgment was entered for the Claimant in the sum of Kshs. 1,789,171 with interest at court rates from 3rd December 2014 and costs of the suit. However, the claims for medical expenses of Kshs. 529,033 were refused for want of jurisdiction under section 16 of WIBA, and the claim for pension/terminal benefits of about Kshs. 1,888,000 failed as unproved. The suit was therefore partially allowed.

Key legal issues

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01

Whether the Claimant's injuries were dealt with by the Director of Occupational Safety and Health Services

Holding

The Director conducted an inquiry under section 23(1) of WIBA and awarded the Claimant Kshs. 1,789,171; the Respondent's late objection was declined and it never exercised its right of appeal under section 52(2), so the decision stands

Reasoning

The Respondent was aware of the DOSH process and did not deny the report. The Director made inquiries, considered the claim and awarded Kshs. 1,789,171 on 4th July 2013. The Respondent's objection was lodged outside the 60-day period under section 51 and was declined; the Respondent did not appeal to the Industrial Court under section 52(2). The decision therefore stands unassailed.

p. 6
02

Whether this Court can enforce the Director's award

Holding

Yes; the ELRC has jurisdiction to enforce awards of compensation by the Director under WIBA notwithstanding the absence of a prescribed enforcement mechanism

Reasoning

Section 10 confers on employees a right to compensation. If the Court declined enforcement for lack of a specific mechanism where the employer neglects or refuses to settle the award, it would abdicate its duty and defeat the statutory obligation to compensate. The court endorsed the holding in Glyde Khatete Okwaro that the ELRC is the proper enforcement court.

p. 7
03

Whether the Claimant's other reliefs (medical expenses and pension/terminal benefits) were available

Holding

The medical expenses claim failed for want of jurisdiction under section 16 of WIBA; the pension claim was not proved

Reasoning

Section 16 of WIBA bars recovery of damages in respect of occupational accidents other than through the Act's mechanism, so medical expenses could not be awarded in these proceedings. On pension contributions, no evidence established a scheme or an obligation on the Respondent to compensate, so the claim was not proved.

p. 7

Legal principles established

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  • In the absence of a prescribed summary procedure for enforcement, the proper Court for enforcement of the Director's decision under WIBA is the Employment and Labour Relations Court
  • A decision of the Director of Occupational Safety and Health Services not challenged within the statutory objection/appeal mechanism stands and is enforceable

Court orders

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  1. 1.Judgment entered in terms of the Director's award in the sum of Kshs. 1,789,171
  2. 2.Interest on the sum of Kshs. 1,789,171 at Court rates from 3rd December 2014 till full payment
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Work Injury Benefits ActSection 2 (definition of accident)
  • Work Injury Benefits ActPreamble
  • Work Injury Benefits ActSections 21, 22, 23, 24, 25 and 29
  • Work Injury Benefits ActSection 53
  • Work Injury Benefits ActSection 19
  • Work Injury Benefits ActSection 26(4)
  • Work Injury Benefits ActSection 10
  • Work Injury Benefits ActSection 16
  • Work Injury Benefits ActSection 23(1)
  • Work Injury Benefits ActSection 51
  • Work Injury Benefits ActSection 52 (including 52(2))
  • Constitution of KenyaArticle 162(2)
  • Employment and Labour Relations Court ActSection 12(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (9)

  • Longonot Horticulture Limited -vs- James Wakaba Maina
    [2019] eKLR
  • Jared Ingling Obuya -vs- Handicap International
    [2021] eKLR
  • East African Airways -vs- Knight
    [1975] E.A. 165
  • Samuel Mula Mbindu -vs- Steel Makers Limited
    ERLC Civil Appeal No. 13 of 2013
  • Tobias Ouma Otieno -vs- Mattan Contractors Limited
    ELRC Cause No. 516 of 2017
  • Law Society of Kenya -vs- Attorney General & another
    [2019] eKLR
  • Glyde Khatete Okwaro -vs- Mohlal J. Chabadya t/s Ashadig Enterprises
    [E065 of 2021]
  • Virginia Wangari Muita (Legal representative of Philip Mwangi (deceased) -vs- Nyoro Construction Company Limited
    Appeal No. 36 of 2019
  • Ruth Wambui Mwangi and another -vs- Alfarah Wholsesalers
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution as read with section 12(1) of the Employment and Labour Relations Court Act; jurisdiction to enforce awards of the Director of Occupational Safety and Health Services under the Work Injury Benefits Act

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, "Samuel Otieno Musumba v Industrial & another [2022] KEELRC 215 (KLR)", Case Analysis (2022). Cause No 1332 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/215/eng@2022-03-21

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