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ELRCDismissedMiscellaneous Application dated 1st September 2023 (ELRC)· [2024] KEELRC 517 (KLR)

Seme v Sino Hydro Corporation Engineering Bureau 15 Co. Ltd (K) (Miscellaneous Application E009 of 2023) [2024] KEELRC 517 (KLR)

Employment and Labour Relations Court
7 March 2024
HWHellen Wasilwa
2,222 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 ruled it cannot adopt a DOSH workplace injury award as its own judgment; the proper route to court is an appeal under section 52(2) WIBA.

What this practically means

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Executive summary

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The Applicant, a former Chief Mechanic engaged by the Respondent from 2018, sustained a work injury on 12th November 2019. The Employer filed the statutory notice of occupational accident and the Director of Occupational Safety and Health (DOSH) assessed compensation of Kshs. 663,000 under WIBA/KER/2185/22. The Applicant moved the Court by Notice of Motion dated 1st September 2023 under section 87 of the Employment Act seeking adoption of the DOSH award as a judgment of the Court, and later amended the application to seek Kshs. 1,121,213.73 as the correct assessed sum, with interest and costs. The Respondent opposed, asserting that the ELRC's jurisdiction over DOSH awards is appellate only under section 52(2) WIBA, and further that its insurer, Resolution Insurance Co. Limited, is under statutory management with a moratorium on payments, so execution would prejudice it. Both parties canvassed jurisdiction by written submissions. Justice Hellen Wasilwa framed a single issue: whether the Court has jurisdiction to adopt a DOSH award made under WIBA. Relying on the Owners of Motor Vessel Lilian jurisdiction test, and following Elias Musembi v Great Yaduo Industry Limited, Peter Mutwa Kaloki and Lameck Nyakundi Anyona, the Court held that its jurisdiction over the Director's decisions is appellate only under sections 51 and 52 WIBA, and that it cannot adopt the Director's award through a miscellaneous application. The application was struck out with no order of costs.

Key legal issues

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Whether the ELRC has jurisdiction to adopt a DOSH/WIBA award as a judgment of the Court via a miscellaneous application

Holding

No. The Court's jurisdiction over Director's awards is appellate only under section 52(2) WIBA; enforcement by adoption is irregular.

Reasoning

Sections 51 and 52 WIBA establish objection and appeal mechanisms against the Director's decisions. WIBA provides no enforcement framework for unchallenged awards. Applying a purposive interpretation, the court found it cannot adopt the Director's award and thereafter also sit on appeal against it; the only route to the Court is by appeal under section 52(2).

p. 5

Legal principles established

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  • The ELRC exercises only appellate jurisdiction over decisions and awards of the Director of Occupational Safety and Health under WIBA; it cannot adopt a Director's award as its own judgment through a miscellaneous application

Court orders

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  1. 1.Application struck out
  2. 2.No order of costs

Authorities

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Legislation

  • Employment Actsection 87
  • Work Injury Benefits Actsections 10, 51(1), 52(1), 52(2)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure Act, 2010sections 1A and 3A
  • Civil Procedure RulesOrder 8 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8

Cases cited (8)

  • Richard Akama Nyambane v Maltauro Spa
    [2020] eKLR
  • Ruth Wambui Mwanggi & another versus Alfarah Wholesalers Limited
    [2017] eKLR
  • Samson Chweya Mwandabole v Protective Custody Limited
    [2021] eKLR
  • Elias Musembi v Great Yaduo Industry Limited
    (Miscellaneous Case E080 of 2022) [2022] KEELRC 13025 (KLR)
  • Austin Oduor Odira V Kenya Sweets Ltd & Another
  • Owners of Motor Vessel Lilian v. Caltex Oil (Kenya) Ltd
  • Peter Mutwa Kaloki v. China State Construction & Engineering (K) & Another
    eKLR
  • Lameck Nyakundi Anyona v. Wjj Kenya Construction Company Limited
    (2022) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 87 of the Employment Act; sections 51 and 52 of the Work Injury Benefits Act considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Seme v Sino Hydro Corporation Engineering Bureau 15 Co. Ltd (K) (Miscellaneous Application E009 of 2023) [2024] KEELRC 517 (KLR)", Case Analysis (2024). Miscellaneous Application dated 1st September 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/517/eng@2024-03-07

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