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ELRCStruck OutNot stated in the judgment

Bosibori (Suing as administrator of the Estate of Samuel Onyancha Kinanga (Deceased) v Dock Workers Union Limited (Miscellaneous Application E031 of 2023) [2023] KEELRC 3169 (KLR)

Employment and Labour Relations Court
30 November 2023
938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A family's attempt to convert a Ksh. 16.4 million workplace death compensation award into a court judgment failed because a Certificate of Dependency must come first under WIBA.

What this practically means

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Executive summary

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Margaret Bosibori, administrator of the estate of Samuel Onyancha Kinanga, applied ex parte under articles 47, 48 and 50(1) of the Constitution, sections 87 and 90 of the Employment Act and rule 17 of the ELRC Procedure Rules, 2016, seeking to adopt as judgment of the court an award by the Director of Occupational Safety and Health Services of Ksh. 16,482,336, plus interest and costs. The deceased, the respondent's Chief Accountant, sustained fatal gunshot injuries in the course of employment on 29 January 2020. The Director assessed compensation for 100% permanent incapacity, issued a notice dated 11 March 2022 requiring payment, and a further notice dated 16 November 2022 under section 26(4) of WIBA after the initial 90 days lapsed without payment. The respondent, though served and represented by counsel on 9 November 2023 without filing notice, never entered appearance or responded. Justice M. Mbaru held that in a fatality, WIBA requires the Director, under section 6 read with section 34 and the Third Schedule, to ascertain dependants through a Certificate of Dependency before payment is effected; a limited grant ad litem alone is insufficient. The proceedings were therefore premature and were struck out, with parties directed to revert to the Director. No costs were awarded. The court noted the respondent's failure to respond to or settle the compensation despite awareness of the proceedings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Director's award of compensation of Ksh. 16,482,336 under WIBA could be adopted as judgment of the court
  2. 2.Whether the proceedings were premature in the absence of a Certificate of Dependency and compliance with sections 6 and 34 of WIBA

Key legal issues

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01

Prematurity of adoption of DOSH award in fatality cases

Holding

Proceedings to adopt the Director's award were premature because a Certificate of Dependency must issue before payment can be effected in a fatality case

Reasoning

Under WIBA, where a work injury results in death, the Director is required under section 6 to pay dependants in accordance with the Third Schedule, read with section 34. A limited grant ad litem alone is insufficient; the Director must ascertain dependants and allocate compensation based on a Certificate of Dependency before issuing payment notices. The applicant was therefore directed back to the Director.

p. 2

Legal principles established

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  • In a fatal work injury, a Certificate of Dependency must issue and the Director must ascertain dependants and apply the Third Schedule before payment of compensation

Court orders

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  1. 1.Proceedings struck out as premature
  2. 2.Parties to revert back to the Director in terms of sections 6 and 34 of WIBA read together with the Third Schedule
  3. 3.No orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 47, 48 and 50(1) of the Constitution; sections 87 and 90 of the Employment Act; rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Work Injury Benefits Act, 2007

Relief refused

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Adoption of the Director of Occupational Safety and Health Services' award as judgment of the court and entry of judgment for Ksh. 16,482,336 plus interest

Proceedings premature - no Certificate of Dependency; Director must act under sections 6 and 34 of WIBA read with the Third Schedule before payment

p. 3

Costs of the application

Court declined to award costs despite the respondent's non-participation

p. 3

Costs

No costs shall issue; no orders on costs - each side bears own costs (no costs awarded).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

These proceedings are premature. Parties shall revert back to the Director in terms of sections 6 and 34 of WIBA read together with the Third Schedule thereof.
p. 3prematurity of proceedings
Accordingly, proceedings herein are premature and are hereby struck out. Parties shall revert back to the Director. No orders on costs.
p. 3final orders
It is not suficient that the applicant has obtained Limited Grant of Letters of Administration ad litem.
p. 2limited grant and dependency

Issues in the judgment

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material

Respondent is not named anywhere in the judgment; proceedings are described as ex parte against an unnamed respondent

minor

Typographical error - 'Detector' used instead of 'Director'

minor

Inconsistent dates for the Director's assessment - 11.3.2022 in the application versus 9 March 2022 in the determination

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, "Bosibori (Suing as administrator of the Estate of Samuel Onyancha Kinanga (Deceased) v Dock Workers Union Limited (Miscellaneous Application E031 of 2023) [2023] KEELRC 3169 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3169/eng@2023-11-30

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