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ELRCDismissedNot stated in the judgment· [2024] KEELRC 1516 (KLR)

Valley Confectionary Ltd v Director Occupational Safety and Health Service & another (Miscellaneous Application E016 of 2024) [2024] KEELRC 1516 (KLR)

Employment and Labour Relations Court
11 June 2024
HWHellen Wasilwa
4,328 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employer challenging a work injury award lost because it filed the wrong application — challenges to DOSH awards must come as appeals, not objections.

What this practically means

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Executive summary

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The Applicant, through its Human Resource manager Evalyne Gathoni Maina, moved the ELRC by Notice of Motion dated 22nd March 2024 seeking leave to lodge an objection out of time against an award of Kshs 1,422,720 made by the Director of Occupational Safety and Health on 7th July 2023 to the 2nd Respondent under the Work Injury Benefits Act, together with stays of execution of the award and of enforcement proceedings in Nakuru CMCC Misc. Civil Application No. E336 of 2023. The Applicant argued that it was never notified of the proceedings or award before the Director, that the deceased employee's death resulted from natural causes (cardiac tamponade due to ruptured aortic dissection) and not from a workplace injury, and that execution would render the intended objection nugatory. The 2nd Respondent opposed, contending the application was incompetent, delayed, and that the ELRC could only review the Director's award by way of appeal under section 52 of WIBA. The Court examined the WIBA statutory scheme (sections 21, 22, 23, 26(4), 51 and 52) and held that its jurisdiction is appellate only, invoked on an award of the Director and not by way of an objection filed as a miscellaneous application. Finding the Applicant had invoked the Court's jurisdiction improperly, the Court dismissed the application as unmerited. No express costs order was recorded.

Key legal issues

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01

Whether the ELRC can entertain an application seeking leave to object to a Director's award under WIBA otherwise than by appeal

Holding

The Court lacks jurisdiction to hear an objection filed as a miscellaneous application; jurisdiction is exercised only on appeal under section 52(2) WIBA

Reasoning

The Court traced the WIBA scheme: notice of accident (sections 21-22), inquiry by the Director (section 23), settlement within 90 days (section 26(4)), objection within 60 days (section 51) and appeal to the Industrial Court within 30 days of the Director's reply (section 52(2)). Reading section 52(2), the Court held its jurisdiction is lodged as an appeal on the Director's award and not on an objection itself, so the miscellaneous application route chosen by the Applicant was impermissible.

p. 8

Legal principles established

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  • The ELRC's jurisdiction over decisions of the Director of Occupational Safety and Health under WIBA is appellate in nature and can only be invoked by way of appeal, not by an original objection

Court orders

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  1. 1.The Notice of Motion dated 22nd March, 2024 was dismissed
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act, 2007 (appeals from the Director to the Industrial Court/ELRC)

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, "Valley Confectionary Ltd v Director Occupational Safety and Health Service & another (Miscellaneous Application E016 of 2024) [2024] KEELRC 1516 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1516/eng@2024-06-11

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