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ELRCDismissedNot stated in judgment· [2024] KEELRC 1134 (KLR)

Lukano (Suing as a Legal Representative of the Estate of Evans Lukano - Deceased) v Gurdev Engineering; Jamly Services (Interested Party) (Miscellaneous Application E010 of 2024) [2024] KEELRC 1134 (KLR)

Employment and Labour Relations Court
17 May 2024
SRStella Rutto
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it cannot enforce workplace injury awards by the Director of Occupational Safety and Health; only a Magistrate's Court can.

What this practically means

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Executive summary

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The Applicant, the personal representative of a deceased employee (Evans Lukano) who died in a workplace accident on 21st October 2018, moved the Court by Notice of Motion under Section 87 of the Employment Act seeking adoption as an order of the Court of the Director of Occupational Health and Safety's assessment dated 9th October 2023 and issuance of a decree for Kshs.2,496,000.00, plus costs. The Respondent opposed, contending the application was premature and an abuse of process because no WIBA Form 4 assessment was made or served upon it; the only Form 4 assessment dated 23rd December 2022 was against the Interested Party (James Ochieng Osiro t/a Jamly Services), the deceased's actual employer. The Interested Party appeared but filed no response or submissions. The Court found that the Applicant produced no prescribed Form 4 addressed to the Respondent, and that the Inquiry Report relied upon was incomplete, undated, unsigned and incomprehensible. The assessment was therefore against the Interested Party only, making the application against the Respondent premature. On jurisdiction, the Court held there is a lacuna: no provision empowers the ELRC to enforce a Director's award; under Section 52(2) of the Work Injury Benefits Act the Court's jurisdiction is appellate, per the Supreme Court's decision in Law Society of Kenya vs Attorney General. Adoption of a Director's award lies only in the Magistrate's Court. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether an assessment was made against the Respondent

Holding

No prescribed Form 4 assessment addressed to the Respondent was produced; the only Form 4 was against the Interested Party.

Reasoning

The Applicant failed to produce a copy of the prescribed Form 4 addressed to the Respondent. The ML/DOSH/WIBA Form 4 dated 23rd December 2022 was addressed to James Ochieng Osire, the Interested Party. The Inquiry Report relied on was incomplete, undated and unsigned, and incomprehensible, so no definitive finding could be made from it.

p. 4
02

Jurisdiction of the ELRC to enforce a Director's award

Holding

The Court has no jurisdiction to enforce an award by the Director; enforcement/adoption lies in the Magistrate's Court, and the ELRC's role is appellate under Section 52(2) WIBA.

Reasoning

There is no statutory provision granting the ELRC power to enforce an award emanating from the Director, creating a lacuna. Section 52(2) of WIBA confers appellate jurisdiction on this Court, as determined by the Supreme Court in Law Society of Kenya vs Attorney General. Enforcing the award would place the Court in the position of sitting on appeal over its own enforcement, which is unsuitable and not contemplated by WIBA.

p. 4

Legal principles established

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  • An application for adoption of an Award by the Director of Occupational Safety and Health can only be brought before a Magistrate's Court, not the ELRC.
  • The ELRC's jurisdiction over WIBA matters arising from the Director's awards is appellate, under Section 52(2) of the Work Injury Benefits Act.

Court orders

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  1. 1.Dismissal of the Application filed on 29th January 2024
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 87
  • Work Injury Benefits ActSection 26(6)
  • Work Injury Benefits ActSection 21
  • Work Injury Benefits ActSection 23
  • Work Injury Benefits ActSection 52(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Elijah Kisyanga Ndende vs The Managers Zahkem International Construction Ltd
    (2022) eKLR
  • Samson Chweya Mwandabole vs Protective Custody Limited
    (20021) eKLR
  • Law Society of Kenya vs Attorney General & another
    [2019] eKLR
Jurisdiction invoked
Section 87 of the Employment Act; Section 52(2) of the Work Injury Benefits Act (appellate jurisdiction)

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, "Lukano (Suing as a Legal Representative of the Estate of Evans Lukano - Deceased) v Gurdev Engineering; Jamly Services (Interested Party) (Miscellaneous Application E010 of 2024) [2024] KEELRC 1134 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1134/eng@2024-05-17

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