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ELRCPartially AllowedNotice of motion dated 18th October, 2023· [2024] KEELRC 857 (KLR)

Luvinzu v Timsales Limited (Miscellaneous Civil Application E069 of 2023) [2024] KEELRC 857 (KLR)

Employment and Labour Relations Court
4 April 2024
3,715 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 can enforce unpaid DOSH workplace injury awards as debts, and time starts running when the award is issued, not when the injury happened.

What this practically means

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Executive summary

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The applicant, a former employee injured at work on 5th February 2020, obtained a compensation award of Kshs 460,895.50 from the Directorate of Occupational Safety and Health Services (DOSH) under WIBA, communicated to the respondent employer on 27th October 2020. The employer neither objected to nor appealed against the award, nor settled it. The applicant moved the ELRC by notice of motion dated 18th October 2023 seeking judgment on the award with interest at 12% per annum. The respondent filed a preliminary objection contending the claim was time-barred under Section 4(2) of the Limitation of Actions Act read with Section 90 of the Employment Act, and that the court lacked jurisdiction. The respondent's replying affidavit, filed out of time and without leave on 15th February 2024, was struck out as an abuse of process, leaving the applicant's facts uncontroverted. The court framed three issues: its jurisdiction to enforce a DOSH award, the merit of the PO, and costs. Holding that WIBA provides an appeal mechanism but no enforcement procedure, the court adopted the line of authority that the ELRC has jurisdiction to enforce unchallenged awards, which become civil debts arising from the employment relationship. On limitation, the cause of action accrued when the award was communicated, not when the injury occurred. The application was allowed: judgment was entered for Kshs 460,895.50 with interest at 14% from 27th October 2020, the PO was dismissed, and the applicant was awarded costs.

Key legal issues

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01

Jurisdiction of ELRC to enforce a WIBA award of the Director

Holding

The ELRC has jurisdiction to enforce an unchallenged DOSH award as a debt arising from employment

Reasoning

WIBA provides an appeal route under Section 52(2) but no enforcement mechanism. The court held that since an award resolves an employment dispute, and an unchallenged award becomes a debt founded on the employment relationship, Section 12 of the ELRC Act and Section 87 of the Employment Act confer exclusive jurisdiction on the ELRC to enforce it. The court aligned itself with decisions holding that enforcement need not go to the magistrates' court.

p. 6
02

When limitation begins to run for enforcement of a WIBA award

Holding

The cause of action accrues when the award is made and communicated, not when the injury occurred

Reasoning

The respondent argued the claim was time-barred from the date of injury (5th February 2020). The court held the cause of action arose when the Director's award was communicated to the respondent on 27th October 2020, so the three-year period expired on or about 26th October 2023, before the application filed on 19th October 2023.

p. 7
03

Effect of filing a replying affidavit out of time without leave

Holding

The late replying affidavit was struck out and the applicant's facts stood uncontroverted

Reasoning

The respondent filed its replying affidavit on 15th February 2024, outside the 14 days allocated on 13th December 2023 and without leave. The court condemned this as misconduct and abuse of process, struck out the affidavit, and proceeded on the basis that the applicant's facts were unchallenged.

Legal principles established

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  • The ELRC has jurisdiction to enforce an award of the Director (DOSH) under WIBA where the award is not challenged by objection or appeal and the employer fails to settle it
  • An unchallenged WIBA award becomes a civil debt arising from the employment relationship

Court orders

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  1. 1.Judgment entered in favour of the applicant as per the award of the Director in the sum of Kshs 460,895.50 together with interest thereon at 14% from 27th October, 2020 till payment in full
  2. 2.The preliminary objection by the Respondent is dismissed
  3. 3.The Applicant is awarded costs of the application
  4. 4.The respondent's replying affidavit filed on 15th February, 2024 without leave is struck out and expunged from the record

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Work Injury Benefits Act (WIBA)Sections 10, 16, 30, 34, 37, 40, 51, 52(2)
  • Limitation of Actions ActSection 4(2)
  • Employment ActSections 87, 90
  • Constitution of KenyaArticles 162(2), 165(5)(b)
  • Employment and Labour Relations Court ActSection 12

Cases cited (11)

  • Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd
    (1989)
  • Mukhisa Biscuits Manufacturing Limited v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • JN & 5 Others v Board of Management of St. George School Nairobi & Another
    (2017) eKLR
  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    (2010)
  • Moses Ouma Langi v County Government of Nakuru
    (2023) eKLR
  • George Mwaura Ng’ang’a v County Government of Nakuru
    (2023) eKLR
  • Richard Akama Nyambane v ICG Maltauro Spa
    (2020) eKLR
  • Virginia Wangari Muita v Nyoro Construction Company Limited
    (2020) eKLR
  • Bornface Indolo Luciva v Prime Quantifiers Construction Company Limited
    (2021) eKLR
  • Elijah Kisyanga Ndende v Manager Zakhem International Construction Ltd
    (2022) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Section 87 of the Employment Act; Sections 10, 16, 30, 34, 37, 40 & 51 of 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, "Luvinzu v Timsales Limited (Miscellaneous Civil Application E069 of 2023) [2024] KEELRC 857 (KLR)", Case Analysis (2024). Notice of motion dated 18th October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/857/eng@2024-04-04

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