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ELRCPartially AllowedNotice of motion dated 13th December, 2023 (ELRC, Nakuru)· [2024] KEELRC 1818 (KLR)

Mwangi (Suing as the legal representative of John Karanja Mirichi (Deceased) v Lijodi & another (Miscellaneous Application E079 of 2023) [2024] KEELRC 1818 (KLR)

Employment and Labour Relations Court
11 July 2024
4,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that an employer who ignores a work injury compensation award can be forced to pay it as a court-enforceable debt.

What this practically means

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Executive summary

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The applicant, widow and joint administratrix ad litem of John Karanja Mirichi, a truck driver who died in a road traffic accident in the course of employment on 22nd March 2022, sought enforcement of a compensation award of Kshs4,512,000/= assessed by the Occupational Safety and Health Officer, Nakuru, under WIBA. The award was communicated to the employer on 5th October 2022 and reminded on 20th February 2023, but the employer neither objected, appealed, nor settled. By notice of motion dated 13th December 2023 under Order 51 Rule 1 of the Civil Procedure Rules, Sections 3A, 1A and 1B of the Civil Procedure Act and Sections 30, 36, 37 and 40 of WIBA, the applicant sought adoption of the award as a judgment, entry of judgment for the assessed sum, interest, and costs. The respondent argued the ELRC lacked jurisdiction to enforce DOSH awards absent an appeal under Section 52(2) WIBA, that employment was unproven, and that the award was inflated. The court framed three issues and held that the ELRC has original and exclusive jurisdiction to enforce unappealed DOSH awards, which crystallise into civil debts arising from employment relationships, following Nduma J in Bornface Indolo Luciva and Kitiku J in Elijah Kisyanga Ndende. The respondent's attack on the award was an unprocedural, disguised appeal and impermissible evidence from the bar, employment being impliedly admitted through DOSH Form 1. The court allowed the application, entered judgment for Kshs4,512,000/= with interest at court rates from 5th October 2022 until payment in full, and awarded costs to the applicant.

Key legal issues

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01

Whether the ELRC has jurisdiction to enforce a DOSH award under WIBA where the employer neither objects nor appeals

Holding

The ELRC has jurisdiction to enforce such an award, which becomes a debt due and payable arising from an employment relationship, under Section 12 of the ELRC Act and Section 87 of the Employment Act.

Reasoning

WIBA is silent on enforcement of DOSH awards, producing conflicting decisions. The court reasoned that DOSH resolves employment disputes in a quasi-judicial function; where an employer fails to object or appeal and neglects to settle, the award crystallises into a debt. Denying the employee a remedy would be illogical and unjust, and an ELRC enforcement decision is itself appealable to the Court of Appeal.

p. 8
02

Whether the respondent could attack the award as excessive or dispute the employment relationship

Holding

The respondents' submission was an impermissible attempt to adduce evidence from the bar and a disguised, unprocedural appeal/review against the award; employment was impliedly admitted.

Reasoning

Employment was not denied in the replying affidavit, and the respondents themselves filled and submitted DOSH Form 1 supplying the particulars on which the award was based. Evidence may only be tendered viva voce or by affidavit. The proper route to challenge the award was objection under Section 51 and appeal under Section 52(2) of WIBA, which the respondents forwent.

p. 9
03

Whether the court should re-assess the award

Holding

The court has no jurisdiction to review the award absent a lawful appeal; the application was allowed as prayed.

Reasoning

The only lawful route to disturb a DOSH award is objection to the Director and appeal to the ELRC under Sections 51 and 52 of WIBA. Having failed to object or appeal within the prescribed periods, the respondents could not invite the court to re-assess quantum. The award based on particulars the respondents supplied stands and is enforceable as a debt.

p. 4

Legal principles established

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  • An unrebutted DOSH award under WIBA becomes a civil debt arising from an employment relationship, which the ELRC has original and exclusive jurisdiction to enforce.
  • A party aggrieved by a DOSH award must object under Section 51 and appeal under Section 52(2) of WIBA; a court cannot be asked to review the award unprocedurally.

Court orders

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  1. 1.The notice of motion dated 13th December, 2023 by the applicant has merits and the same is hereby allowed with costs.
  2. 2.Judgment be and is hereby entered in favour of the applicant in the sum of Kshs4,512,000/= with interest thereon at court rates from 5th October, 2022, when the award was made till payment in full.
  3. 3.The applicant is awarded costs of these proceedings.

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 3A, 1A, 1B
  • Work Injury Benefits Act (WIBA)Sections 16, 30, 36, 37, 40, 51, 52
  • Employment ActSections 10, 74, 47(5), 87
  • Evidence ActSections 107, 108
  • Constitution of KenyaArticles 162(2), 165(5)(b)
  • Employment and Labour Relations Court ActSection 12

Cases cited (11)

  • Law Society of Kenya V Attorney General
    Petition No. 4 of 2019; (2019) eKLR
  • Heritage Insurance Company Limited V David Fikiri Joshua & Another
    (2021) eKLR
  • Ng’ang’a V County Government of Nakuru
    (2023) eKLR
  • Borniface Indolo Luciva V Prime Qualifiers Construction Company Limited & Another
    (2021) eKLR
  • Lameck Nyakundi Anyona V W.J.J. Kenya Construction Company Limited
    (2022) eKLR
  • Samuel Kamau Macharia & Another V Kenya Commercial Bank
    (2012) eKLR
  • Casmir Nyankuru Nyaberi V Mwakikar Agencies Limited
    (2016) eKLR
  • Zakaria Adoyo Obondo V Tai Shujun & Another
    (2020) eKLR
  • Owners of the Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd
    (1989)
  • 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

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, "Mwangi (Suing as the legal representative of John Karanja Mirichi (Deceased) v Lijodi & another (Miscellaneous Application E079 of 2023) [2024] KEELRC 1818 (KLR)", Case Analysis (2024). Notice of motion dated 13th December, 2023 (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1818/eng@2024-07-11

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