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ELRCDismissedNot stated in judgment· [2023] KEELRC 1765 (KLR)

Okupa v Welding Alloys Limited (Cause E501 of 2021) [2023] KEELRC 1765 (KLR)

Employment and Labour Relations Court
24 July 2023
JGJACOB GAKERI
2,346 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 ruled it cannot enforce workplace injury awards made by DOSHS — injured workers must pursue appeals, not adoption of awards.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver, was injured in September 2018 while assisting to off-load gas cylinders. Following notification, the Director of Occupational Safety and Health Services (DOSHS) on 27th November 2019 made an award of Kshs.2,924,757.04, assessing incapacity at 58%, which the Respondent neither appealed nor paid. The Claimant sought adoption of the DOSHS award as a judgment of the Employment and Labour Relations Court, with interest and costs. The Respondent disputed liability and contended the court lacked jurisdiction to enforce DOSHS awards, noting WIBA, 2007 and the ELRC Act contain no enforcement mechanism. The court isolated a single issue: whether it had jurisdiction to adopt the DOSHS Form I award as its judgment. Reviewing WIBA's scheme, the court found that Parliament did not envisage court-based enforcement of DOSHS awards; Part III provides only for objections and appeals under Section 52(2) to the Industrial Court, and enforcement would amount to original jurisdiction WIBA does not confer. Adopting the reasoning of Rika J. in Lameck Anyona, the Court of Appeal in Elizabeth Njeri Nderi, and the Supreme Court's jurisprudence that jurisdiction flows only from the Constitution or statute, the court held it lacked jurisdiction. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the ELRC has jurisdiction to adopt and enforce DOSHS awards as its own judgment

Holding

The court has no such jurisdiction; WIBA is silent on enforcement and confers only appellate jurisdiction via Section 52 objections and appeals

Reasoning

The court held WIBA, 2007 is silent on enforcement of DOSHS awards, and neither WIBA, the Employment Act nor the ELRC Act confers power to enforce the Director's compensatory awards. Enforcement would be analogous to original jurisdiction, which WIBA does not confer; only appeals under Section 52(2) lie. Adopting Rika J. and Supreme Court jurisprudence on jurisdiction, the suit was dismissed.

p. 4

Legal principles established

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  • The Employment and Labour Relations Court's jurisdiction under WIBA, 2007 is restricted to appeals under Section 52(2); it has no original jurisdiction to enforce or adopt DOSHS awards as its judgment

Court orders

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  1. 1.Suit dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Work Injury Benefits ActSections 52(2), 53(1), 53(2)(e), 53(3)
  • Employment ActSection 87
  • Employment and Labour Relations Court ActNot specified
  • Occupational Safety and Health ActNot specified
  • Workmens Compensation Act (repealed)Not specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (8)

  • Ruth Wambui Mwangi & another V Alfarah Wholesalers Ltd
    (2017) eKLR
  • Samuel Kamau Macharia & another V Kenya Commercial Bank Kenya Ltd & 2 others
    (2012) eKLR
  • Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011
  • Lameck Nyakundi Anyona V W.J.J Kenya Construction Co. Ltd
    (2022) eKLR
  • Benson Kungu V Uzuri Foods Ltd
    Misc. Application No. E280 of 2021
  • Owners of Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Elizabeth Njeri Nderi and Sarah Wangithi Mwangi (suing as legal representatives of Peter Nderi Kinyua (Deceased) V Highway Carriers Ltd
    (2019) eKLR
  • Machini V Safaricom Ltd
    (2022) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under WIBA, 2007 (Section 52) and the Employment and Labour Relations Court 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, "Okupa v Welding Alloys Limited (Cause E501 of 2021) [2023] KEELRC 1765 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1765/eng@2023-07-24

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