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ELRCAllowedMisc Application No E080 of 2023· [2024] KEELRC 380 (KLR)

Muiruri v China Gansu International Corporation for Economic and Technical Cooperation (K) Ltd (Miscellaneous Application E080 of 2023) [2024] KEELRC 380 (KLR)

Employment and Labour Relations Court
23 February 2024
2,505 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 confirmed that workers can enforce unpaid workplace injury compensation by adopting the safety director's award as a court judgment, with interest and costs.

What this practically means

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Executive summary

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The Applicant, a former employee of the Respondent, was burnt in a gas cylinder explosion while cutting steel plates on 28th August 2019, suffering 20% permanent disability. The accident was reported to the Directorate of Occupational Safety and Health, which on 26th June 2020 assessed his compensation at Kshs. 883,800/-. The Respondent neither filed an objection under section 51 WIBA nor an appeal under section 52, nor did it settle the award. The Applicant moved the Court by Notice of Motion dated 5th April 2023 seeking adoption of the Director's award as judgment, entry of judgment for Kshs. 883,800/-, interest from 26th June 2020, and costs. The Respondent opposed, contending the award was excessive, unsupported medically, and that the claim was time-barred. The Court identified a single issue: whether to grant the orders sought. It held that although WIBA is silent on enforcement of the Director's award, the ELRC has jurisdiction under Article 162(2) of the Constitution and section 12 of the ELRC Act to adopt the award for execution where no objection or appeal is pending, drawing on Elijah Kisyanga Ndende, Samson Chweya Mwandabole and Joash Shisia Cheto. Merit-based challenges were held irrelevant absent an appeal under section 52. On limitation under section 90 of the Employment Act, the Court held the cause of action accrues on the 91st day after receipt of the award, given the 90-day settlement window in section 26(4) WIBA, so the claim filed on 5th April 2023 was in time. The application was allowed with costs.

Key legal issues

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01

Whether the Court may adopt and enforce the Director's award despite WIBA's silence on enforcement procedure

Holding

Yes; the lacuna does not leave the employee without remedy, and the ELRC's jurisdiction under Article 162(2) and section 12 of the ELRC Act permits adoption of the award.

Reasoning

WIBA provides no enforcement mechanism for the Director's award. Reading WIBA with the Constitution and the ELRC Act, and guided by precedent, the Court holds it has inherent jurisdiction to adopt the award for execution where no objection or appeal under sections 51 and 52 WIBA has been lodged. Refusing relief would offend Article 48 access to justice and Article 10 values of social justice and rule of law.

p. 3
02

Whether the Respondent could attack the merits of the award in enforcement proceedings

Holding

No; challenges to the merits are confined to the objection and appeal procedures under sections 51 and 52 WIBA, which the Respondent did not invoke.

Reasoning

The Respondent's complaints about excessiveness and medical support would be proper grounds in an appeal under section 52 WIBA, but are irrelevant in enforcement proceedings where the Court's authority does not extend to merit review. Having failed to object or appeal within the statutory periods, the Respondent is bound by the award.

p. 4
03

Whether the enforcement claim was time-barred under section 90 of the Employment Act

Holding

No; time began to run on the 91st day after receipt of the award, and the claim filed on 5th April 2023 was within three years.

Reasoning

Section 90 imposes a three-year limitation on claims arising from contracts of service. Since section 26(4) WIBA gives the employer 90 days to settle the award, default occurs only after that period lapses. The award of 26th June 2020 matured around 26th September 2020, so the three years expired on 26th September 2023, after the Applicant filed on 5th April 2023.

p. 5

Legal principles established

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  • The ELRC has jurisdiction to adopt a DOSH award as its judgment for enforcement purposes where no objection or appeal has been mounted against it under WIBA
  • Absent an appeal under section 52 WIBA, the court may not examine the merits of the Director's award
  • For limitation purposes under section 90 of the Employment Act, the cause of action for enforcing a Director's award arises on the 91st day after receipt of the award, given the employer's 90-day settlement window under section 26(4) WIBA

Court orders

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  1. 1.The Director of Occupational Safety and Health's award in Wiba/KBO/657/019/020 adopted as judgment of the Court
  2. 2.Judgment entered for the Applicant against the Respondent in the sum of Kshs. 883,800/-
  3. 3.Interest on the awarded sum from the date of the award (26/06/2020) until payment in full
  4. 4.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment and Labour Relations Court ActSections 12 and 20(1)
  • Work Injury Benefits ActSections 10, 26(4), 51, 52
  • Employment Act, 2007Section 90
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (4)

  • Elijah Kisyanga Ndende –Vs- The Manager Zahkem Internation Construction Ltd
    [2022] eKLR
  • Samson Chweya Mwandabole –Vs- Protective Custody Limited
    [2021] eKLR
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
  • Richard Akama Nyambane vs ICG Maltauro Spa
    [2020] eKLR
Jurisdiction invoked
Article 162 of the Constitution of Kenya 2010; Sections 12 and 20(1) of the Employment and Labour Relations Court Act; Section 10 of the Work Injury Benefits 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, "Muiruri v China Gansu International Corporation for Economic and Technical Cooperation (K) Ltd (Miscellaneous Application E080 of 2023) [2024] KEELRC 380 (KLR)", Case Analysis (2024). Misc Application No E080 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/380/eng@2024-02-23

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