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ELRCDismissedMiscellaneous Application filed October 31, 2022 (application dated October 26, 2022)· [2023] KEELRC 1266 (KLR)

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)

Employment and Labour Relations Court
27 April 2023
MMM. Mbarũ
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, a dependant of the deceased employee Mwendwa Mwooni Mwanzia, filed a miscellaneous application on October 31, 2022 seeking to enforce an award of the Director of Occupational Safety and Health Services made on November 2, 2016, awarding Kshs 1,080,000 for a work-related death occurring on April 6, 2015. The respondent, Coast Bus Limited, filed preliminary objections on November 24, 2022, arguing that the application offended the mandatory three-year limitation in section 90 of the Employment Act and was therefore time barred and should be struck out with costs. The court, M. Mbarũ J, heard the objections on written submissions. It accepted that section 90 imposes a mandatory three-year limitation for actions arising under the Employment Act. However, it found that the award arose out of a work injury regulated by WIBA, which has no enforcement mechanism. The employer had itself reported the accident on April 7, 2015, the Director made and served the award, and the respondent forwarded it to its insurers but never paid. Section 16 of WIBA channels claims exclusively through the Director's process, and the Supreme Court in Law Society of Kenya v Attorney General and COTU confirmed this mechanism is not intended to limit access to courts. The court held that non-payment of a Director's award cannot be bound by section 90 timelines and must be addressed under WIBA. The preliminary objections were dismissed, the substantive application was directed to be heard on the merits, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether section 90 of the Employment Act's three-year limitation applies to enforcement of a Director's award under WIBA

Holding

It does not; non-payment of a Director's award is to be addressed under WIBA, not barred by section 90

Reasoning

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.

p. 4
02

Whether the respondent's knowledge of the accident and award defeats a lapse-of-time objection

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The court will hear the applicant's application dated October 26, 2022 on the merits
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007sections 87, 89, 90
  • Work Injury Benefits Act (WIBA)sections 16, 26(4), 27, 51, 52
  • Occupational Safety and Health Actnot specified
  • Limitation of Actions Actsections 4(1), 4(4)
  • Constitution of Kenya, 2010generally referenced by the Supreme Court quote on access to courts

Cases cited (6)

  • Mukisa Biscuits Manufacturers Company Limited v West End Distributors
    (1969) EA
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited
    (1989)
  • Richard Akama Nyambane v ICG Maltauro Spa
    [2020] eKLR
  • Elijah Kisyanga Ndende v Manager Zahkem International Construction Limited
    [2022] eKLR
  • George Hiram Ndirangu v Equity Bank Limited
    [2015] eKLR
  • Law Society of Kenya v Attorney General and COTU
    Petition No 4 of 2019
Jurisdiction invoked
Sections 87 and 90 of the Employment Act, 2007; 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, "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.