Mukavana v Butali Sugar Mills Ltd (Employment and Labour Relations Appeal E013 of 2023) [2024] KEELRC 707 (KLR)
The bottom line
#A Kenyan court dismissed a worker's appeal because he objected to his injury compensation award six years too late, but the original Kshs. 548,121 award still stands.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's objection to the Director's assessment was time-barred
The objection was statutory time-barred; Section 51 allows sixty days from the Director's decision, and the Appellant's objection filed in October 2023 against a 30th January 2017 assessment was out of time with no extension mechanism available
Section 51 of WIBA requires an objection within sixty days of the Director's decision. The assessment was made on 30th January 2017 and no objection was lodged by either party. The Appellant argued time should run from service of the assessed Form DOSH WIBA 4 on 16th October 2023, but the Court found he was working at the material time and made no effort to follow up the reporting of his injury. Equity follows the law and cannot defeat the written limitation.
Whether the Court could re-assess the Director's award (salary figure and multiplier)
The award was correctly based on 40% permanent disablement under Section 30(3) of WIBA applied to 96 months' earnings; the Court could not review the award because the objection was time-barred
Dr. Lelei's medical report certified 40% permanent disablement. Section 30(1) provides for compensation based on ninety-six months' earnings and Section 30(3) for a percentage of disablement for injuries not specified in the First Schedule. The claim fell under Section 30(3) and the Director's assessment at 40% of 96 months' earnings was proper. In any event, the Court could not revisit the salary applied because the objection was time-barred.
Whether the Appellant was entitled to medical expenses, general damages and future medical expenses
The medical expenses had been defrayed by the employer under Section 47, and the common law heads of damages sought are outside the Director's WIBA mandate
The itemized statement from St. Luke Orthopaedic and Trauma Hospital indicated the payer as Butali Sugar Company despite receipts being issued in the Appellant's name. On a balance of probability the employer had complied with Section 47. General damages for pain and suffering, loss of future earnings and future medical expenses are common law awards not exercisable by DOSH, whose jurisdiction is confined to Sections 30 and 47 of WIBA.
Legal principles established
#- An objection to the Director's assessment under Section 51 of WIBA must be lodged within sixty days of the decision; there is no provision for extension of time and equity cannot defeat the written law
- The Director of WIBA exercises jurisdiction confined to WIBA; common law heads of damages such as general damages for pain and suffering and future earnings are not awardable by DOSH
- An appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed; the decision of DOSH dated 30th October 2023 upholding the time-bar finding is upheld and the assessment is upheld
- 2.The Award for Kshs. 548,121.16 is adopted as judgment of the court for enforcement purposes
- 3.The Respondent should deposit the awarded amount with the Director within 14 days of the judgment, failing which the full amount shall attract interest at court rates from the date of judgment until full payment
- 4.Each party to bear its own costs in the appeal
- On appeal from
- Director of Occupational Health and Safety Services (DOSH/WIBA), Kakamega
- WIBA/KKM/1594/17
- Jurisdiction invoked
- Section 52(2) of the Work Injury Benefits Act, 2007 (appeal to the Industrial Court against the Director's reply to an objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukavana v Butali Sugar Mills Ltd (Employment and Labour Relations Appeal E013 of 2023) [2024] KEELRC 707 (KLR)", Case Analysis (2024). Not stated in the judgment (Memorandum of Appeal dated 28th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/707/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.