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ELRCPartially AllowedMemorandum of Claim dated May 17, 2021 (ELRC Mombasa)· [2023] KEELRC 1361 (KLR)

Musoma v Tulsi Construction Limited (Cause E051 of 2021) [2023] KEELRC 1361 (KLR)

Employment and Labour Relations Court
2 June 2023
ANAgnes Kitiku Nzei
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed employers must pay workplace injury compensation assessed by the Director of Occupational Safety once assessed, unless formally objected to.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general worker/casual, suffered a crush injury to his left hand on 3/4/2019 in a mixer machine while on duty at the Kenya School of Government in Mombasa. The respondent notified DOSH and the Mombasa County Occupational Safety and Health Officer assessed compensation at Ksh. 1,309,550 on October 26, 2020, which the respondent failed to pay despite a demand. The claimant sought a declaration of liability for the assessed sum, payment with interest, a declaration that non-payment offended section 26(4) of WIBA with an order for sentencing, and costs. The respondent denied the claim, asserting it paid hospital bills of about Ksh. 504,306 and continued weekly payments, and contending the assessment was done without its participation; its application to set aside the assessment was dismissed by a Ruling of February 10, 2022, which held that the Court lacked primary jurisdiction over objections that should have gone to the Director under section 52(2). At trial, the claimant's evidence showed the respondent stamped and filled DOSH Form 1 and never objected to the assessment. The Court framed a single issue: whether it has jurisdiction to enforce the Director's award. Relying on its own recent decisions, it held that determination of liability and assessment are the Director's preserve under sections 16 and 23, but the Act does not divest the Court of jurisdiction to enforce an unobjected-to award, which constitutes a liquidated claim. Judgment was entered for the claimant for Ksh. 1,309,550 with interest at court rates from the date of the ruling, plus costs. The prayer for sentencing the respondent was not granted.

Key legal issues

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01

Whether the ELRC has jurisdiction to enforce the Director's compensation award under WIBA

Holding

The Court has jurisdiction to enforce an unobjected-to Director's award by entry of judgment and issuance of a decree, but retains no primary jurisdiction to determine liability or the work injury itself.

Reasoning

Section 16 ousts court actions for damages for occupational accidents, while section 23 vests determination of liability and assessment of compensation in the Director. However, WIBA does not divest the Court of jurisdiction to enforce an unobjected-to award. Failure to pay a demanded, assessed compensation creates a dispute over a liquidated claim which, under Article 50(1), the Court may entertain.

p. 5

Legal principles established

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  • Once the Director assesses compensation under WIBA and no objection is lodged under section 51, the employee may move the Court for judgment in terms of the assessment and a decree enforceable by execution.

Court orders

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  1. 1.the Respondent shall pay to the Claimant a sum of ksh. 1,309,550 being the award assessed by the Mombasa County Occupational Safety and Health Officer on October 26, 2020; a decree shall issue accordingly
  2. 2.interest on the said awarded sum shall be calculated at court rates from the date of this Ruling
  3. 3.the claimant is awarded costs of these proceedings and interest thereon at Court rates

Authorities

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Legislation

  • Work Injury Benefits Actsection 16
  • Work Injury Benefits Actsection 23
  • Work Injury Benefits Actsection 51
  • Work Injury Benefits Actsection 26(4)
  • Work Injury Benefits Actsection 52(2)
  • Constitution of Kenya 2010Article 50(1)

Cases cited (2)

  • Millicent Akinyi Odhiambo & Another -vs- Quale Holdings Ltd t/a Guyana Guest House
    [2022] eKLR
  • Amir Swaleh Omar -vs- Mackenzie Matime [E.A.] Limited
    [2022] eKLR
Jurisdiction invoked
Sections 16, 23 and 51 of the Work Injury Benefits Act; Article 50(1) of the Constitution of Kenya 2010

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, "Musoma v Tulsi Construction Limited (Cause E051 of 2021) [2023] KEELRC 1361 (KLR)", Case Analysis (2023). Memorandum of Claim dated May 17, 2021 (ELRC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1361/eng@2023-06-02

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