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ELRCAllowedNot stated in judgment text provided· [2024] KEELRC 460 (KLR)

Munandi v Hewson Company Limited (Employment and Labour Relations Cause E015 of 2023) [2024] KEELRC 460 (KLR)

Employment and Labour Relations Court
29 February 2024
3,602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed injured workers can enforce workplace injury compensation awards directly, and employers who miss the 60-day objection deadline lose their chance to challenge them.

What this practically means

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Executive summary

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The Claimant, a security guard allegedly injured while on duty, filed a Statement of Claim on 11th September 2023 seeking adoption of the Director of Occupational Safety and Health Services' compensation award of Kshs. 244,600/- (dated 10th January 2023) as judgment of the Court, plus costs and interest. The Respondent opposed, arguing the Court lacked jurisdiction to adopt a DOSH award, that its letter of 13th June 2023 was a valid objection seeking a second medical examination, and that the claim was premature and an abuse of process because the Claimant withdrew his complaint before the County Occupational Safety and Health Office. The Court framed three issues: jurisdiction, prematurity, and entitlement to the orders sought. Relying on Samson Chweya Mwandabole v Protective Custody Limited and Elijah Kisyanga Ndende v Zahkem International Construction Ltd, the Court held that despite the lacuna in WIBA on enforcement of the Director's awards, it has inherent jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the ELRC Act to adopt such awards for execution. On prematurity, the Court found the Respondent's purported objection of 13th June 2023 was lodged 146 days after the claim was lodged on 10th January 2023, well outside the sixty-day window in section 51(1) WIBA, and was not in the prescribed form. The medical reports suggesting a pre-existing eye condition post-dated the accident, and there was no proof the award was set aside or cancelled. The claim was held to be mature and the award was adopted as judgment of the Court, with interest at court rates and costs to the Claimant.

Key legal issues

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01

Jurisdiction to adopt the Director's award

Holding

The Court has jurisdiction to adopt the DOSH award as its judgment for execution purposes.

Reasoning

WIBA contains a lacuna as it provides no procedure for enforcing the Director's assessment. Relying on Samson Chweya Mwandabole v Protective Custody Ltd and Elijah Kisyanga Ndende v Zahkem International Construction Ltd, the Court held that its unlimited original jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act confers inherent jurisdiction to adopt the award for execution, distinct from the appellate jurisdiction under section 52(2) WIBA.

p. 5
02

Prematurity of the claim

Holding

The claim was mature; the Respondent's purported objection was time-barred and not in the prescribed form, and no valid objection or appeal was mounted against the award.

Reasoning

The employer had ninety days under section 26(4) WIBA from lodgement on 10th January 2023 to settle. Its letter of 13th June 2023 came 146 days after lodgement, beyond the sixty-day objection window under section 51(1), and was not in the prescribed form DOSH/WIBA/12. There was no proof the award was set aside or cancelled; the Claimant's withdrawal of union/DOSH complaints did not extinguish the award.

p. 7
03

Second medical examination

Holding

A request for a second medical examination amounts to an objection and must be made within sixty days; the Respondent did not comply.

Reasoning

Section 25 WIBA permits an employer to require a second medical examination after reasonable notice, but the Court held such a request operates as an objection to the award and is subject to the sixty-day statutory timeline under section 51. The medical reports relied on post-dated the accident of 8th December 2021, and there was no evidence of a prior accident or pre-existing injury.

p. 7

Legal principles established

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  • The ELRC has inherent jurisdiction to adopt a DOSH award under WIBA as judgment of the Court for purposes of execution, distinct from appellate jurisdiction under section 52(2) WIBA.
  • An objection to a Director's decision under section 51(1) WIBA must be lodged within sixty days and in the prescribed form; an untimely or non-conforming objection is ineffective.

Court orders

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  1. 1.The Director of Occupational Safety and Health Services' assessment of Kshs. 244,600/- dated 10th January 2023 is adopted as the judgment of the Court.
  2. 2.Interest on the award sum of Kshs. 244,600/- at court rates from the date of the order till payment in full.
  3. 3.Costs of the suit awarded to the Claimant.

Authorities

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Legislation

  • Work Injury Benefits ActSection 51(1) and (2)
  • Work Injury Benefits ActSection 52(2)
  • Work Injury Benefits ActSection 26(4)
  • Work Injury Benefits ActSection 25
  • Constitution of KenyaArticle 162(2)(a)
  • Employment and Labour Relations Court ActSection 12

Cases cited (7)

  • Evans Kiganane Anyiti v Dunhill Building Constructor Limited & Another
    (2021) eKLR
  • Ruth Wambui Mwangi & Another v Alfarah Wholesalers Limited
    (2017) eKLR
  • Joash Shisia Cheto v The Pot Patrick Charles
    (2022) eKLR
  • Samson Chweya Mwandabole v Protective Custody Limited
    [2021] eKLR
  • Elijah Kisyanga Ndende v Manager Zahkem International Construction Ltd
    [2022] eKLR
  • Stephen Wangusi Nyongesa v Dot.com Bakery Limited
    (2022) eKLR
  • Hadisha Engineering Co. Ltd & Another v Benson Chege Karoki
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; inherent jurisdiction to adopt a Director of Occupational Safety and Health Services award under WIBA

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, "Munandi v Hewson Company Limited (Employment and Labour Relations Cause E015 of 2023) [2024] KEELRC 460 (KLR)", Case Analysis (2024). Not stated in judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/460/eng@2024-02-29

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