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ELRCPartially AllowedNot stated in the judgment (notice of motion dated 21st September, 2022)· [2023] KEELRC 2155 (KLR)

Langi v County Government of Nakuru (Miscellaneous Civil Application E038 of 2022) [2023] KEELRC 2155 (KLR)

Employment and Labour Relations Court
21 September 2023
DNDavid Nderitu
3,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can enforce unpaid workplace injury awards, handing a worker Kshs.1.5 million plus interest from his employer.

What this practically means

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Executive summary

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The Applicant, Moses Ouma Langi, moved the ELRC at Nakuru by notice of motion dated 21st September 2022 seeking to adopt as a judgment of the court a WIBA award of Kshs.1,495,968.20 made by the Director of Occupational Safety and Health Services on 11th January 2021 following a work-related injury, with interest at 14% per annum and costs. The Respondent filed a preliminary objection contending that the court lacked jurisdiction to enforce awards of the Director, citing Lameck Nyakundi Anyona v W.J.J Kenya Construction Company Limited. The matter proceeded by written submissions, and the Applicant's facts remained uncontroverted as no replying affidavit was filed. The court framed three issues: its jurisdiction to enforce a WIBA award, the merits of the PO, and costs. Holding that WIBA is silent on enforcement of unappealed awards, Nderitu J adopted the line of authority holding that the ELRC has such jurisdiction, agreeing with Nduma J in Bornface Indolo Luciva and Kitiku J in Elijah Kisyanga Ndende. The court reasoned that an unappealed award becomes a debt founded on the employment relationship, over which the court has original and exclusive jurisdiction under Section 12 of the ELRC Act and Section 87 of the Employment Act. However, the court cautioned that the award should not be 'adopted' as a judgment; the proper course is entry of judgment based on the award, followed by ordinary execution. The PO was dismissed, judgment was entered for the Applicant for Kshs.1,495,968.20 with 14% interest from 11th January 2021 until payment in full, and the Applicant was awarded costs of the application.

Key legal issues

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01

Jurisdiction of ELRC to enforce an unappealed WIBA award by the Director

Holding

The ELRC has jurisdiction; the unappealed award becomes a civil debt arising from employment, enforceable through entry of judgment and ordinary execution

Reasoning

The Director performs a quasi-judicial function and parties must exhaust that process; but where the employer does not appeal and fails to settle, the award becomes a debt founded on the employment relationship. Sections 12 of the ELRC Act and 87 of the Employment Act confer exclusive original jurisdiction over employment disputes, and a judgment enforcing such an award is appealable to the Court of Appeal, so no prejudice arises.

p. 6
02

Form of enforcement - adoption of the award versus entry of judgment

Holding

Adoption of the award as a judgment is flawed; the correct prayer is that judgment be entered based on the award, then enforced through the usual execution process

Reasoning

The court cautioned that applicants should seek entry of judgment based on the award rather than adoption, and that the action may be commenced by ordinary cause or miscellaneous application, with substance preferred over form given the absence of a specific procedure.

p. 6
03

Merits of the preliminary objection

Holding

The PO, which challenged the court's jurisdiction, failed

Reasoning

Having found that the court possesses jurisdiction over enforcement of unappealed WIBA awards, the objection grounded on lack of jurisdiction and on Lameck Nyakundi Anyona could not stand.

p. 7

Legal principles established

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  • The ELRC has jurisdiction to enforce an award by the Director under WIBA where the award is not appealed against and the employer fails, refuses or neglects to settle it; such an unreversed award becomes a debt due and payable arising from the employment relationship.

Court orders

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  1. 1.Judgment entered in favour of the Applicant as per the award of the Director in the sum of Kshs.1,495,968.20 together with interest thereon at 14% from 11th January, 2021 till payment in full
  2. 2.The preliminary objection by the Respondent dismissed
  3. 3.The Applicant awarded costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a); Article 165(5)(b)
  • Employment and Labour Relations Court ActSection 12
  • Work Injury Benefits Act (WIBA) 2007Sections 16, 51, 52(2)
  • Employment ActSection 87

Cases cited (12)

  • Lameck Nyakundi Anyona v W.JJ Kenya Construction Company Limited
    [2022] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • In the Matter of Advisory Opinion No. 2 of 2011
  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    (2010) eKLR
  • Virginia Wangari Muita v Nyoro Construction Company Limited
    (2020) eKLR
  • Samson Chweya Mwendapole v Protective Custody Limited
    (2021) eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    (1989)
  • Mukhisa Biscuits Manufacturing Limited v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • JN & 5 Others v Board of Management of St. George School Nairobi & Another
    (2017) eKLR
  • Bornface Indolo Luciva v Prime Quantifiers Construction Company Limited
    (2021) eKLR
  • Elijah Kisyanga Ndende v Manager Zakhem International Construction Ltd
    (2022) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Section 87 of the Employment Act

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, "Langi v County Government of Nakuru (Miscellaneous Civil Application E038 of 2022) [2023] KEELRC 2155 (KLR)", Case Analysis (2023). Not stated in the judgment (notice of motion dated 21st September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2155/eng@2023-09-21

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