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ELRCAllowedMiscellaneous application dated January 26, 2023· [2023] KEELRC 657 (KLR)

Njuguna & 2 others (All suing as legal representatives of the Estate of the late Evanson Njuguna Kugwa – Deceased) v Multiple Hauliers Limited (Miscellaneous Application E010 of 2022) [2023] KEELRC 657 (KLR)

Employment and Labour Relations Court
10 March 2023
747 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 can convert a workplace injury compensation assessment into an enforceable judgment, so families can finally collect awarded money.

What this practically means

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Executive summary

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The applicants, legal representatives of Joseph Ngugi Njuguna (deceased), sought adoption as an order of the Court of a DOSH assessment dated October 18, 2019 of Kshs. 3,381,408.00 in compensation for a fatal workplace accident of September 3, 2019, together with a decree and costs. The respondent filed a preliminary objection contending that under section 52(2) of the Work Injury Benefits Act, 2007 the Court holds only appellate jurisdiction over the Director's decisions, which does not extend to enforcement, relying on Rika J's decision in Margaret Wanjiku Kaniu v Multiple Hauliers. The applicants relied on Samson Chweya Mwendabole v Protective Custody Limited, where Onesmus Makau J held that the ELRC, endowed with unlimited original and appellate jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the ELRC Act, has inherent jurisdiction to adopt the Director's award for execution despite a lacuna in WIBA on enforcement procedure. Ongaya PJ adopted that reasoning, holding that the WIBA appeal process is distinct from a proceeding to enforce an assessment. The respondent filed no affidavit opposing the material facts, and the court found the applicants entitled to the orders sought. On March 10, 2023 the court adopted the DOSH assessment as an order of the Court, directed the respondent to pay Kshs. 3,381,408.00 by April 30, 2023 failing interest at court rates from the date of filing until full payment, awarded the applicants costs of the proceedings, and directed that a decree issue accordingly.

Key legal issues

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01

Whether the Court's jurisdiction over WIBA assessments is confined to appeals under section 52(2) of WIBA

Holding

No - the Court has inherent jurisdiction to adopt the Director's award as judgment for execution.

Reasoning

The respondent's preliminary objection relied on Rika J's decision in Margaret Wanjiku Kaniu v Multiple Hauliers that section 52(2) of WIBA confers only appellate jurisdiction not extending to enforcement. The court instead followed Onesmus Makau J in Samson Chweya Mwendabole v Protective Custody Limited, holding that although WIBA contains a lacuna on enforcement of the Director's awards, the Court's unlimited original jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act embraces adoption of such awards as judgments. Appellate jurisdiction under section 52(2) is a separate, distinct process.

p. 2
02

Whether the applicants were entitled to the orders sought

Holding

Yes - the respondent filed no affidavit opposing the material facts, and the applicants were unopposed.

Reasoning

The respondent opposed only by preliminary objection and filed no replying affidavit to contest the material facts: the deceased's fatal workplace accident of September 3, 2019, the DOSH assessment of Kshs. 3,381,408.00, notification of October 18, 2019, and the respondent's failure to object under section 51 of WIBA or to pay despite demand. With the facts unrebutted, the court found the applicants entitled to adoption of the assessment, a decree and costs.

p. 2

Legal principles established

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  • The ELRC has inherent jurisdiction, grounded in Article 162(2)(a) and section 12 of the ELRC Act, to adopt a Director's WIBA award/assessment as judgment for purposes of execution; that jurisdiction is distinct from the appellate jurisdiction under section 52(2) of WIBA.
  • The appeal process under WIBA is different from a proceeding to enforce an award made in an assessment under the Act.

Court orders

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  1. 1.The assessment of the Director of Occupational Health and Safety Officer dated October 18, 2019 is adopted as an order of the court
  2. 2.The respondent to pay the applicants Kshs. 3,381,408.00 by April 30, 2023, failing which interest at court rates from the date of filing the application until full payment
  3. 3.The respondent to pay costs of the proceedings
  4. 4.A decree to issue accordingly

Authorities

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Legislation

  • Work Injury Benefits Act, 2007 (WIBA)section 51
  • Work Injury Benefits Act, 2007 (WIBA)section 51(1)
  • Work Injury Benefits Act, 2007 (WIBA)section 52(2)
  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment and Labour Relations Court Actsection 12

Cases cited (2)

  • Margaret Wanjiku Kaniu (Suing as the legal representatives of the estate of Nehemiah Mwangi Kamau v Multiple Hauliers [EA] Limited
    Miscellaneous Cause No. E083 of 2022
  • Samson Chweya Mwendabole v Protective Custody Limited
    [2021]eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 and section 12 of the Employment and Labour Relations Court Act; inherent jurisdiction to adopt a Director's WIBA assessment as judgment

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, "Njuguna & 2 others (All suing as legal representatives of the Estate of the late Evanson Njuguna Kugwa – Deceased) v Multiple Hauliers Limited (Miscellaneous Application E010 of 2022) [2023] KEELRC 657 (KLR)", Case Analysis (2023). Miscellaneous application dated January 26, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/657/eng@2023-03-10

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