DAO (Suing on her own behalf and as the next friend to the minor JLM) v Directorate of Occupational Safety and Health & 3 others (Petition E200 of 2023) [2024] KEELRC 1276 (KLR)
The bottom line
#A Kenyan court ruled a minor's work injury compensation can be held by the Public Trustee rather than paid directly to the child's mother.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the process leading to the 1st respondent's decision contained in the letter dated 17th January 2023 violated Articles 47(1), 10, 35, 41 and 53 of the Constitution, the Fair Administrative Action Act, section 36 of WIBA, section 8 of the Children Act and the petitioner's legitimate expectation
- 2.Whether the share of the compensation money due to the minor JLM should be held with the Public Trustee or be paid to the minor's mother
- 3.Whether the 3rd respondent violated the petitioner's rights or failed to meet its obligations under WIBA
- 4.Whether section 52 of WIBA amounted to an unexhausted statutory procedure barring the petition
Key legal issues
#Whether the Director's decision to channel the minor's compensation to the Public Trustee was lawful and reasonable
The decision was lawful, within statutory discretion under section 36 of WIBA, and reasonable in the best interest of the child
Section 36(1) permits the Director, for reasons deemed sufficient, to pay compensation to the Public Trustee for the benefit of dependants of a deceased employee. The minor has immediate needs, and entrusting the cheque to a trust account operated by the Public Trustee secures the funds for access in the child's best interest. Neither the mother nor the minor is prejudiced, and the Director was not shown to have acted outside statutory discretion or unreasonably.
Whether the Director violated the petitioner's constitutional rights to fair administrative action and the best interests of the child
No constitutional violation was established; the decision affected the child rather than the petitioner, and the explanation about remarriage was not in the Director's letter
The Court found that the petitioners were not entitled to a hearing because the decision concerned management of the child's share, not the petitioner's own entitlement. The reason of possible remarriage was not contained in the Director's letter, but this did not render the decision unlawful since the Director's discretion under section 36 was otherwise properly exercised and the funds remain accessible for the minor's benefit.
Whether section 52 of WIBA amounted to unexhausted statutory procedure
It did not, because section 52 applies only to disputes about the assessed amount, which was not the subject of dispute here
The respondents argued the petitioner should have lodged an objection or appeal under section 51/52 of WIBA. The Court held that such machinery concerns disputes on the assessed amount or apportionment, which were not disputed; no dependant contested the computation, and some cheques had already been collected. The issue was solely the management of the minor's share, so no statutory procedure was left unexhausted.
Whether the 3rd respondent breached any obligation to the petitioner
The 3rd respondent complied fully with its statutory obligations and the Director's directions
The 3rd respondent reported the workplace death, did not object to the assessment, issued bankers' cheques for each dependant as directed, and facilitated collection of the non-contested cheques on 30.11.2023 and 04.12.2023, receiving a certificate of payment. The Court found it did everything prescribed by law to cause assessment of the award under the Act.
Legal principles established
#- Under section 36 of the Work Injury Benefits Act, the Director may, for reasons deemed sufficient, direct that compensation payable to a dependant who is a minor be paid to the Public Trustee to be applied for the benefit of the dependants
- Where a WIBA decision concerns the custody/management of a minor's compensation rather than a dispute over the assessed amount, section 52 objection and appeal machinery does not constitute unexhausted statutory procedure
- A parent whose own entitlement is not affected by a direction concerning the management of a minor's share of compensation is not entitled to be heard before that direction is made
Court orders
#- 1.In line with the 1st respondent's letter Ref. No. WIBA/Nrb/01328/2022 dated 17.01.2023 the Public Trustee shall open a Trustee Account for the benefit of the minor JLM for the due sum of Kshs. 2,181,818.00, which may be accessed for the benefit of the minor per the relevant statutory provisions governing operation of the account
- 2.Each party to bear own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 47(1), 10, 35, 41, 53 and 23(e) of the Constitution of Kenya; section 36 of the Work Injury Benefits Act
Relief refused
#Declaration that the decision-making process violated Articles 47(1), 10, 53 of the Constitution, the Fair Administrative Action Act, section 36 of WIBA, section 8 of the Children Act and legitimate expectation
The Director acted within statutory discretion and the petitioners were not entitled to be heard as the decision affected the child, not them
Order of certiorari to quash the decision in the letter dated 17th January 2023
The constitutional violation was not established and the Director did not act unreasonably
Order for release of Kshs. 2,181,818.00 due to the minor to the mother, DAO
In the best interest of the child the cheque is to be remitted to a trust account operated by the Public Trustee
Declarations of damages and orders for general and exemplary damages and compensation under Article 23(e)
No violation of rights was established
Costs
Each party to bear own costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In line with the 1st respondent’s letter Ref. No. WIBA/Nrb/01328/2022 dated 17.01.2023 the Public Trustee shall open a Trustee Account for the benefit of the minor JLM for the due sum of Kshs. 2, 181, 818.00, which may be accessed for the benefit of the minor per the relevant statutory provisions governing operation of the account and for the benefit of the minor.
The Court finds that in the best interest of the child, the cheque in favour of the minor be remitted to the trust account opened by the Public Trustee and which may be accessed in the best interest of the Child.
the petitioners needed not to be heard by the Director as the decision made afiected the child and not the petitioners. The alleged constitutional violation of rights has not been established.
The section 52 of the Act does not amount to unexhausted statutory procedure in the instant case.
Each party to bear own costs of the suit.
Issues in the judgment
#The supporting affidavit of the 1st respondent is sworn on 27.11.2023 but the affidavit text refers to '(27.11.24)'
The petition as reproduced lists the 1st respondent's letter reference inconsistently as WIBA/Nrb/01328/222 and WIBA/Nrb/01328/2022
The petition figure for the minor's share appears as Kshs. 2,181,180 in one passage and Kshs. 2,181,818 in the orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DAO (Suing on her own behalf and as the next friend to the minor JLM) v Directorate of Occupational Safety and Health & 3 others (Petition E200 of 2023) [2024] KEELRC 1276 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1276/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.