Mutegi v Teachers Service Commission & another (Cause E140 of 2023) [2023] KEELRC 2720 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can enforce workplace injury awards issued by the occupational safety Director, so employers who ignore or fail to appeal those awards must pay in full.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction to adopt and enforce awards of the Director of Occupational Safety and Health Services
The court has jurisdiction to enforce the Director's award by adoption notwithstanding the silence of WIBA on enforcement.
The court acknowledged conflicting decisions by judges of the ELRC on this jurisdictional question. Adopting the line of authority it had previously endorsed, it relied on a liberal and purposive interpretation of section 12 of the ELRC Act, reading WIBA in conformity with other statutes and its purpose, Article 162(2) of the Constitution, and the duty to develop the law, so that beneficiaries of DOSH awards are not left without a remedy against non-implementing employers.
Whether an employer who did not object to or appeal against the Director's award can contest liability at the enforcement stage
Matters such as whether the injury arose out of and in the course of employment cannot be raised for the first time at the enforcement stage; they belong before the Director or on appeal.
The court found that the Applicant followed the procedure under section 26 of WIBA and that the 1st Respondent did not challenge the assessment and award by objection or appeal as contemplated under the Act. Defences going to the merits of the award, such as that the accident occurred outside the workplace, could only have been raised in the Director's proceedings or on an appeal under section 52 of WIBA. Having not done so, the employer remains obliged to settle the claim.
Legal principles established
#- The ELRC has inherent jurisdiction to enforce awards of the Director of Occupational Safety and Health Services by adopting them as judgments of the court, notwithstanding that WIBA is silent on enforcement, and an employer who neither objects nor appeals remains bound to settle the award.
Court orders
#- 1.The assessment of the Director of Occupational Safety and Health Services is adopted as a judgment of the court.
- 2.Judgment is entered for the Applicant against the 1st Respondent in the sum as awarded by the Director.
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Article 162(2) of the Constitution; Sections 26 and 52 of the Work Injury Benefits Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutegi v Teachers Service Commission & another (Cause E140 of 2023) [2023] KEELRC 2720 (KLR)", Case Analysis (2023). Notice of Motion dated June 17, 2023 (ELRC Miscellaneous Application; case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2720/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.