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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 230 (KLR)

Siginon Group v Onyonka (Appeal E12 of 2020) [2023] KEELRC 230 (KLR)

Employment and Labour Relations Court
27 January 2023
SRStella Rutto
2,100 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 upheld a 20% disability award for an injured truck driver but deducted earlier compensation already paid to him.

What this practically means

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Executive summary

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The respondent, a truck driver, was injured in a road incident on March 11, 2015 while on duty, sustaining a pelvic fracture. The attending doctor assessed permanent incapacity at 25%; the employer's insurer procured a report from Dr Wambugu assessing 2% disability, on which basis the insurer paid kshs 330,597.00. The Work Injury Evaluation Clinic assessed disability at 20% on November 18, 2019, translating to kshs 712,236.00, and on the employer's objection the Director of Occupational Safety and Health Services upheld that assessment under section 52(1) of the Work Injury Benefits Act by a letter dated January 20, 2020. The employer appealed, contending the Director ignored Dr Wambugu's assessment, failed to explain an 18% disparity, and failed to account for prior compensation. Justice Stella Rutto, hearing the matter as a first appeal, found that the Director acts as a neutral arbiter and that the three-doctor WIEC assessment carried more weight than the insurer-commissioned report of Dr Wambugu, whose assessment was not neutral. The court declined to disturb the 20% assessment. However, because the Director's report was silent on whether the earlier payment of kshs 330,597.00 was taken into account, and invoking section 33(1) of the Act, the court deducted that sum from the award, fixing the respondent's final award at kshs 381,639.00. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the director erred in assessing permanent incapacity at 20%

Holding

No error found; the WIEC assessment by three doctors was preferable to the insurer-commissioned 2% assessment

Reasoning

The WIEC assessment was undertaken by a panel of three doctors and carried more weight than Dr Wambugu's assessment, which was procured by the appellant's insurer and thus not neutral. The director, as neutral arbiter, upheld the 20% assessment under section 52(1). The attending doctor had in fact assessed 25%, higher than the WIEC's 20%, lending further support.

p. 4
02

Whether prior compensation of kshs 330,597.00 should be deducted from the award

Holding

Yes; the director's report was silent on the deduction and the court applied section 33(1) itself

Reasoning

Section 33(1) permits the director to take into account any compensation already awarded under the Act or any other law in respect of the permanent disablement. The director's report did not indicate that the kshs 330,597.00 paid following Dr Wambugu's assessment was accounted for, so justice required the deduction, reducing the award to kshs 381,639.00.

p. 5

Legal principles established

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  • The director under WIBA is a neutral adjudicating party whose assessment is expected to be independent and objective
  • On a first appeal the court must re-evaluate and reconsider the evidence afresh and arrive at its own independent conclusion
  • An assessment conducted by a panel of three doctors at the WIEC carries more weight than an assessment procured by the employer's insurer

Court orders

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  1. 1.The appeal is declined and the director's assessment of 20% permanent disability is sustained
  2. 2.Pursuant to section 33(1) of the Act, the sum of kshs 330,597.00 previously paid as compensation is reduced from the award of kshs 712,236.00
  3. 3.The respondent's final award shall be kshs 381,639.00
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Work Injury Benefits Actsection 25(1)
  • Work Injury Benefits Actsection 33(1)
  • Work Injury Benefits Actsection 52(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (1)

  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
On appeal from
Office of the Director of Occupational Safety and Health Services
Jurisdiction invoked
First appeal against the Director's statutory award under the Work Injury Benefits Act (WIBA)

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, "Siginon Group v Onyonka (Appeal E12 of 2020) [2023] KEELRC 230 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/230/eng@2023-01-27

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