Wasika v Caddell Construction Co (DE) LLC; Directorate of Occupational Safety and Health Services (Interested Party) (Petition E073 of 2023) [2023] KEELRC 3383 (KLR)
The bottom line
#A Kenyan court fined an employer Kshs 3.5 million for refusing to report a worker's occupational back disease to the government, and ordered it to file the report now.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction notwithstanding sections 16, 23(1) and 52 of the Work Injury Benefits Act
The preliminary objection failed; the petition sought to compel the respondent's submission to the Act and to enforce fundamental freedoms, not damages barred by section 16
The court held the petition was not a compensation claim for disablement but one to enforce the Work Injury Benefits Act against an employer who refused or neglected voluntary submission to it. The respondent's own failure to report the disease to the Director prevented the statutory process from being triggered, so the petitioner's capacity to invoke the Act's processes was not perfected and the petition was well grounded within the court's jurisdiction.
Whether the petitioner acquired an occupational injury or disease in the respondent's employment
Yes - established by the respondent's own exhibits and medical reports, and attributable to the assigned duties
The respondent's replying affidavit exhibited first aid station records of 11 visits, MRI findings of lumbar disc degeneration, and its own orthopaedic surgeon's report of a work-related back injury. The respondent undertook no pre-employment or periodic medical examinations by a Designated Health Practitioner as required by the Medical Examination Rules, 2005, and failed its duties as an occupier under the Occupational Safety and Health Act, so the presumption under section 39 of WIBA applied.
Whether the termination was unfair
No - the separation was by mutual agreement and the petitioner was paid his dues
The court found no reason to doubt the respondent's account that separation was with the petitioner's mutual agreement with full payment of terminal dues including severance on 26.07.2022. The petitioner did not rebut the replying affidavit and did not deny he was duly paid, so the claim for Kshs 264,000 for unfair termination failed.
Limitation under section 26 of the Work Injury Benefits Act
The claim is not time barred because the disease is degenerative, continuing and progressive, and once reported under section 21 the section 26(2) exception applies
The court characterised the case as one of a degenerative occupational disease rather than a single accident. Reporting of occupational diseases is treated like occupational accidents under section 38; section 22(5) permits the employee to report at any stage, and section 26(2) creates an exception once the disease is reported. Notice under section 41 was given while in employment and after termination through advocates' letter of 09.12.2022.
Constitutional violations and remedies
Violations of articles 27, 28, 35, 41 and 47 established; damages of Kshs 3,500,000 awarded to vindicate the violations
The respondent's refusal to complete and submit the DOSH forms amounted to discrimination in the equal benefit of the law (article 27), affront to dignity (article 28), unfair administrative action (article 47), unfair labour practice (article 41) and denial of access to information (article 35). Considering the no-fault policy of WIBA and the serious degeneration the petitioner suffered without prompt compensation, Kshs 3,500,000 was held appropriate vindication.
Legal principles established
#- A petition seeking to compel an employer to comply with the Work Injury Benefits Act reporting obligations is a claim to enforce the Act and secure fundamental freedoms, not a claim for damages barred by section 16 of the Act
- An employer who receives medical reports showing an occupational disease must report it to the Director within 7 days in the prescribed form under section 22(1) of the Work Injury Benefits Act
- A degenerative occupational disease is a continuing and progressive injury; once reported under section 21 the section 26(1) twelve-month limitation does not bar the claim
- In absence of rebuttal evidence, the presumption that the employee acquired the occupational disease in employment applies under section 39 of the Work Injury Benefits Act
Court orders
#- 1.Declaration that the respondent's failure to fill and submit the notice by an employer of an occupational accident or disease to DOSH violated the petitioner's right under article 41 of the Constitution
- 2.Declaration that the respondent's failure to fill and submit the notice despite being requested violated the petitioner's right under article 35 of the Constitution
- 3.Declaration that the respondent's failure to fill and submit the notice and to give justifiable reasons violated the petitioner's right under article 47 of the Constitution
- 4.Declaration that the respondent's actions contravened articles 2, 3, 10, 19, 22(1) & (3), 23(1) & (3), 25(a), 27, 28, 29(d) and (f) of the Constitution
- 5.Order compelling the respondent to forthwith fill the notice by an employer of an occupational accident or disease and forward it to the Directorate of Occupational Safety and Health Services for computation of compensation payable to the petitioner
- 6.Payment of Kshs 3,500,000.00 by 01.03.2024 as damages for violation of the Bill of Rights, failing which interest at court rates from the date of judgment till full payment
- 7.Respondent to pay petitioner's costs of the petition
- Jurisdiction invoked
- Articles 22, 23 and 41 of the Constitution of Kenya, 2010 and the Work Injury Benefits Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Malome & 170 others v Associated Battery Manufacturers (EA) Ltd; Directorate of Occupational Safety and Health Services (Interested Party) (Employment and Labour Relations Petition E004 of 2025) [2025] KEELRC 3710 (KLR)[2025] KEELRC 3710 (KLR)17 Dec 2025followed
- Gachuhi v Eagle 1 Concrete & Machineries Limited; Directorate of Occupational Safety and Health Services (Interested Party) (Petition E010 of 2024) [2025] KEELRC 518 (KLR)[2025] KEELRC 518 (KLR)13 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Wasika v Caddell Construction Co (DE) LLC; Directorate of Occupational Safety and Health Services (Interested Party) (Petition E073 of 2023) [2023] KEELRC 3383 (KLR)", Case Analysis (2023). Petition dated 17.03.2023, filed 18.04.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3383/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.