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ELRCOtherNot stated in the judgment· [2024] KEELRC 1781 (KLR)

Naftali (Suing as the Legal Administrator and/or Representative of the Estate of the Late Monica Nafula Lucheli - Deceased) v County Government of Kakamega (Miscellaneous Case E001 of 2024) [2024] KEELRC 1781 (KLR)

Employment and Labour Relations Court
11 July 2024
JKJ. W. Keli
4,294 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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Kenya's High Court-style ELRC confirmed you have up to 12 years to enforce a workplace injury compensation award, so no special permission was needed.

What this practically means

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Executive summary

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The applicant, widower and legal administrator of the estate of Monica Nafula Lucheli, a former employee of the County Government of Kakamega, sought leave by Chamber Summons dated 11th April 2024 to file a suit out of time to enforce a DOSH award of Kshs. 3,926,880/- made on 12th September 2019 under the Work Injury Benefits Act in respect of an occupational disease (glioblastoma multiforme) from which the deceased died on 7th March 2020. The respondent filed a Notice of Preliminary Objection arguing that the application offended Section 90 of the Employment Act, was statute-barred, and that the court lacked jurisdiction. The court framed two issues: jurisdiction and merit. It held that Section 89 (formerly 90) of the Employment Act did not apply because the dispute arose under WIBA, not a contract of service. The DOSH award, being an order directing payment, fell under Section 4(4) of the Limitation of Actions Act, allowing twelve years from the date payment became due (12th December 2019, being the lapse of the 90-day settlement period under Section 26(4) WIBA). Only about four years had elapsed, so the application for extension of time was premature and grounded on the wrong provisions, Section 27 of the Limitation of Actions Act applying only to tort claims for personal injuries. Applying Willis Onditi Odhiambo v Gateway Insurance Co Limited, the court held it could not grant leave where none was required and that its jurisdiction had been invoked prematurely. The application was held premature; the preliminary objection failed; and, neither party having succeeded, there was no order as to costs. Orders were made on 11th July 2024 at Kakamega.

Key legal issues

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01

Jurisdiction of the ELRC over the application

Holding

The court had jurisdiction under Section 12(3) of the Employment and Labour Relations Act, but the application was premature because the limitation period for enforcing the DOSH award had not expired.

Reasoning

The court traced its jurisdiction to Section 12(3) of the Employment and Labour Relations Act. It found the applicant invoked jurisdiction prematurely since the twelve-year period under Section 4(4) of the Limitation of Actions Act for enforcement of the DOSH award had not lapsed. Section 90/89 of the Employment Act did not apply because the matter arose under WIBA, not a contract of service.

p. 8
02

Whether the application was barred by Section 90 (now 89) of the Employment Act

Holding

No. The three-year limitation in Section 89 applies to actions arising from the Employment Act or a contract of service, not to enforcement of a WIBA award.

Reasoning

The court held that the matter was governed by WIBA, whose purpose is compensation for work-related injuries and diseases. There was no contract-of-service issue to be adjudicated, so the three-year limitation did not apply. The employer's failure to settle the award within 90 days under Section 26(4) WIBA meant enforcement was governed by the Limitation of Actions Act.

p. 5
03

Whether leave to file suit out of time could be granted under Sections 27 and 28 of the Limitation of Actions Act

Holding

No. The application was grounded on the wrong provisions, as Section 27 applies to tort claims for personal injuries, not to enforcement of an award.

Reasoning

Relying on Willis Onditi Odhiambo v Gateway Insurance Co Limited, the court held that Section 27 does not confer jurisdiction to extend time for suits enforcing judgments or decrees. Since the DOSH award was enforceable within twelve years under Section 4(4) of the Limitation of Actions Act, and only about four years had lapsed, the application was premature and unnecessary.

p. 9

Legal principles established

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  • Section 90 (now Section 89) of the Employment Act, which imposes a three-year limitation period, does not apply to enforcement of an award made under the Work Injury Benefits Act where there is no contract-of-service issue to adjudicate.
  • An action to enforce a statutory award directing payment of money is governed by Section 4(4) of the Limitation of Actions Act, which allows twelve years from the date the payment became due.
  • An employer must settle a WIBA compensation claim within ninety days of the lodging of the claim by the Director, failing which the employer commits an offence.
  • Courts cannot grant leave to file suit out of time under Section 27 of the Limitation of Actions Act for enforcement of a judgment or decree; extension under that section applies only to tort claims of negligence, nuisance or breach of duty involving personal injuries.

Court orders

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  1. 1.The application dated 11th April 2024 was held to be premature as there is no suit to be filed, DOSH having made the award, and enforcement would be within Section 4(4) of the Limitation of Actions Act.
  2. 2.The preliminary objection dated 7th June 2024 failed.
  3. 3.No order as to costs, neither party having succeeded.

Authorities

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Legislation

  • Limitation of Actions ActSections 27, 28, 4(4)
  • Civil Procedure RulesOrder 37 Rule 6, Order 50 Rule 6
  • Employment ActSection 90 (now Section 89, Rev. 2024)
  • Work Injury Benefits ActPreamble, Sections 6, 26(4), 27, 29, 34, 36
  • Employment and Labour Relations ActSection 12(3)

Cases cited (9)

  • Elijah Kisyanga Ndende v Manager Zahken International Construction Ltd
    (2022) eKLR
  • Malaba v Securex Agencies (K) Limited
    (2024) KEELRC 548 (KLR) (8 March 2024) (Ruling)
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    (2015) eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Owners Motor Vessel & Lilian 'S' v Caltex Oil Kenya Ltd
    (1989) KLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited and 2 others
    (2012) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    (2018) eKLR
  • Waluchio v Teachers Service Commission
    (Cause E006 of 2023) (2024) KEELRC 604 (KLR) (14 March 2024) (Ruling)
  • Willis Onditi Odhiambo v Gateway Insurance Co Limited
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Naftali (Suing as the Legal Administrator and/or Representative of the Estate of the Late Monica Nafula Lucheli - Deceased) v County Government of Kakamega (Miscellaneous Case E001 of 2024) [2024] KEELRC 1781 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1781/eng@2024-07-11

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