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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 1332 (KLR)

Njoroge (Suing on her own behalf and on behalf of the Estate of the Late Francis Murende Njoroge (Deceased) v Modern Coast Builders & Contractors Limited (Miscellaneous Application E014 of 2023) [2023] KEELRC 1332 (KLR)

Employment and Labour Relations Court
25 May 2023
MMM. Mbarũ
623 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an unopposed application before the Employment and Labour Relations Court at Mombasa seeking adoption as a judgment of the court of an award of Kshs 2,436,576 made by the Director of Occupational Safety and Health Services on January 7, 2020. The applicant, the widow of the deceased Francis Murende Njoroge, held letters of administration ad litem and averred that the deceased was employed by the respondent and suffered a fatal injury on December 12, 2019. The respondent itself reported the accident to the Director, who assessed the work injury and death and directed the respondent to pay the award. The respondent entered appearance on March 13, 2023 but filed no response, objection or submissions despite being given time to do so. The applicant relied on Samson Chweya Mwendapole v Protective Custody Limited [2021] eKLR, submitting that the Work Injury Benefits Act lacks an enforcement mechanism and that the court, having original mandate under Article 162(2)(a) of the Constitution, was the proper forum. The court found the employment and fatal injury unchallenged, noted the respondent's non-compliance with demand notices, and held that under Section 26 of WIBA the directed payment was due. The court allowed the application and ordered the respondent to pay the applicant, as administrator of the estate, Kshs 2,436,576 for work injuries, with no orders on costs. Judgment was delivered at Mombasa on May 25, 2023 by M. Mbarũ, Judge.

Key legal issues

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01

Enforcement of a DOSHS award under the Work Injury Benefits Act

Holding

The court adopted the Director's award of Kshs 2,436,576 and issued an order compelling the respondent to pay the applicant as administrator of the deceased's estate.

Reasoning

The employment of the deceased and the fatal work injury of December 12, 2019 were unchallenged. The respondent itself reported the accident to the Director, who assessed and directed payment on January 7, 2020. The respondent filed appearance but no response or objection, and several demand notices went unanswered. Relying on authority that WIBA lacks an enforcement mechanism and on the court's original jurisdiction under Article 162(2)(a), the court held itself the proper forum and ordered payment under Section 26 of WIBA.

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02

Jurisdiction of the ELRC over enforcement of WIBA awards

Holding

The ELRC has original mandate over employment and labour relations claims and is the proper forum to enforce a DOSHS award.

Reasoning

The applicant relied on Samson Chweya Mwendapole v Protective Custody Limited [2021] eKLR, which held that WIBA has no enforcement mechanism and that the court, pursuant to Article 162(2)(a) of the Constitution, holds original mandate over employment and labour relations claims. The court adopted this position in allowing the unopposed application.

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Legal principles established

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  • The Work Injury Benefits Act does not contain an enforcement mechanism and the Employment and Labour Relations Court, having original mandate under Article 162(2)(a) of the Constitution, is the proper forum to enforce a Director of Occupational Safety and Health Services award by adopting it as a judgment.
  • Where the respondent does not challenge the award or respond to the application, and payment has been directed under Section 26 of the Work Injury Benefits Act, the court may issue an order enforcing payment of the assessed award.

Court orders

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  1. 1.An order against the respondent to pay the applicant as Administrator of the Estate of the late Francis Murende Njoroge the sum of Kshs 2,436,576 for work injuries under the provisions of the Work Injury Benefits Act, 2007
  2. 2.No orders on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Work Injury Benefits Act, 2007Section 26

Cases cited (2)

  • Samson Chweya Mwendapole v Protective Custody Limited
    [2021] eKLR
  • Odhiambo & another v Quale Holdings Ltd t/a Guyana Guest House
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (original mandate over employment and labour relations claims); Work Injury Benefits Act, 2007

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, "Njoroge (Suing on her own behalf and on behalf of the Estate of the Late Francis Murende Njoroge (Deceased) v Modern Coast Builders & Contractors Limited (Miscellaneous Application E014 of 2023) [2023] KEELRC 1332 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1332/eng@2023-05-25

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