Mwooni (Suing as her own behalf and on behalf of the Estate of the Late Mwendwa Mwooni Mwanzia - Deceased) v Coast Bus Limited (Miscellaneous Application E072 of 2022) [2023] KEELRC 1266 (KLR)
The bottom line
#A Kenyan court ruled that WIBA compensation awards are not time-barred by the Employment Act's three-year limit, so unpaid Director's awards can still be enforced.
What this practically means
#Executive summary
#Key legal issues
#Whether section 90 of the Employment Act's three-year limitation applies to enforcement of a Director's award under WIBA
It does not; non-payment of a Director's award is to be addressed under WIBA, not barred by section 90
The Director's award of November 2, 2016 arose out of a work injury regulated under WIBA, which has no internal enforcement mechanism. WIBA requires compensation to be paid within 90 days, and section 16 channels all claims through the Director's process. The respondent had knowledge of the accident, having reported it, and the award was served on it; non-payment cannot attract section 90's limitation.
Whether the respondent's knowledge of the accident and award defeats a lapse-of-time objection
The respondent knew of the accident (it reported it on April 7, 2015) and the award was brought to its attention; the award remains unsettled
Section 27 of WIBA provides that failure to report an accident is not a bar where the employer had knowledge from any other source. Here the employer itself lodged the report, the Director assessed compensation and served the award on June 29, 2022, and the respondent forwarded it to its insurers. The award has not been settled within the meaning of WIBA.
Legal principles established
#- Non-payment of a Director of Occupational Safety and Health Services award cannot be bound by the three-year timelines under section 90 of the Employment Act; enforcement is addressed within WIBA
Court orders
#- 1.The preliminary objections that the application is time barred under section 90 of the Employment Act and should be struck out are dismissed
- 2.The court will hear the applicant's application dated October 26, 2022 on the merits
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Sections 87 and 90 of the Employment Act, 2007; Work Injury Benefits Act (WIBA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwooni (Suing as her own behalf and on behalf of the Estate of the Late Mwendwa Mwooni Mwanzia - Deceased) v Coast Bus Limited (Miscellaneous Application E072 of 2022) [2023] KEELRC 1266 (KLR)", Case Analysis (2023). Miscellaneous Application filed October 31, 2022 (application dated October 26, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1266/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.