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ELRCAllowedELRC Cause at Mombasa (Notice of Motion dated September 21, 2022)· [2023] KEELRC 59 (KLR)

Nguyete v Timberland Construction Ltd (Miscellaneous Application E065 of 2022) [2023] KEELRC 59 (KLR)

Employment and Labour Relations Court
19 January 2023
ANAgnes Kitiku Nzei
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who ignores a workplace injury compensation assessment now owes the full amount, plus costs and interest, as a court judgment.

What this practically means

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Executive summary

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The applicant, a former Wood Machine Operator employed by the respondent, sustained a crush injury to his right hand on March 8, 2021 leading to amputation of two fingers. The matter was reported to the Director of Occupational Safety and Health Services, who on August 11, 2021 assessed his permanent incapacity at 10% and assessed compensation payable at Ksh. 183,213. The respondent neither objected to the assessment under section 51 of the Work Injury Benefits Act nor paid the assessed sum, prompting the applicant to move the court by notice of motion dated September 21, 2022 seeking adoption of the Director's award as judgment of the court, judgment for Ksh. 183,213 with costs and interest. The application was served but the respondent filed no response and did not appear at the hearing. The court, relying on its prior decisions in Amir Swaleu Omar v Machenzie Maritime (EA) Ltd and Firdaus Athman Abubakar v Modern Coast Builders and Contractors Ltd, held that although WIBA is silent on enforcement of the Director's awards, it does not divest the ELRC of jurisdiction; an unobjected-to assessment becomes the employee's entitlement, and an employer's failure to pay creates a dispute over a liquidated claim which the court can determine under Articles 162(2)(a) and 50(1) of the Constitution. The motion was allowed in full: the Director's award of Ksh. 183,213 was adopted as a judgment of the court, with costs and interest from the date of the ruling until payment in full.

Key legal issues

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01

Whether the ELRC has jurisdiction to enforce the Director's unobjected-to assessment of WIBA compensation

Holding

The court has jurisdiction to enforce the Director's decision where it has not been objected to, as liability and quantum stand determined pursuant to sections 16 and 23 of WIBA.

Reasoning

WIBA is silent on enforcement of the Director's awards but does not divest the court of jurisdiction. Once compensation is assessed and no objection is lodged under section 51, the assessed sum becomes the employee's entitlement. Failure to pay creates a dispute over a liquidated claim which the court, exercising unlimited original jurisdiction under Article 162(2)(a) and Article 50(1), can entertain and enforce.

p. 3
02

Whether the respondent was entitled to challenge the assessment at this stage

Holding

No; the respondent did not lodge an objection within the 60-day window under section 51 of WIBA and did not respond to the application.

Reasoning

Section 51 permits any person aggrieved by the Director's decision to object within sixty days. The respondent neither objected to nor appealed the assessment, nor filed any response to the application despite service. The assessment therefore stood unchallenged and enforceable.

p. 2

Legal principles established

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  • Once the Director assesses compensation under WIBA and no objection is lodged under section 51, the assessed sum becomes the employee's right which the court can enforce by entry of judgment and issuance of a decree

Court orders

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  1. 1.The award of the Director of Occupational Safety and Health Services made on August 11, 2021 awarding the applicant Ksh. 183,213 as compensation is adopted as a judgment of the court, and judgment entered for the applicant against the respondent for Ksh. 183,213
  2. 2.The applicant is awarded costs of the proceedings and interest at court rates
  3. 3.Interest shall be calculated from the date of the Ruling until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 50(1)
  • Work Injury Benefits ActSection 51(1) and (2)
  • Work Injury Benefits ActSections 16 and 23

Cases cited (2)

  • Amir Swaleh Omar -vs- Machenzie Maritime [e.a] Limited
    [2022] eKLR
  • Firdaus Athman Abubakar -vs- Modern Coast Bulders And Contrctors Limited
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; sections 16, 23 and 51 of 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, "Nguyete v Timberland Construction Ltd (Miscellaneous Application E065 of 2022) [2023] KEELRC 59 (KLR)", Case Analysis (2023). ELRC Cause at Mombasa (Notice of Motion dated September 21, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/59/eng@2023-01-19

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