Ngilu v Capacity Outsourcing (K) Limited & another (Cause E061 of 2021) [2024] KEELRC 2318 (KLR)

Employment and Labour Relations Court

26 September 2024

MMM. Mbarũ

921 words in judgment

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The bottom line

A Kenyan court ordered an employer to disclose and pay a Ksh.660,832 work injury award after it refused to release the government-assessed compensation to an injured worker.

What this practically means

Executive summary

This was an uncontested first-instance claim before the Employment and Labour Relations Court at Mombasa, delivered by M. Mbarũ J on 26 September 2024. The claimant, employed by the 1st respondent as a furnace safety supervisor from 2019 at Ksh.21,000 per month, suffered a workplace injury on 17 January 2020 when molten metal exploded from a furnace onto his left eye, resulting in an operation and total loss of the eye. The 1st respondent failed to meet medical bills; the claimant was off duty for 77 days receiving only wages. A DOSH form was submitted to the 2nd respondent, whose medical examination assessed a 30% permanent disability, with counsel asserting an award of Ksh.660,832.90, but the employer refused to disclose the assessment or pay. The claimant sought orders compelling disclosure of the assessment, payment of the assessed compensation, and costs. The respondents were served (including by substituted service) but neither entered appearance nor attended. Relying on Sections 51, 10(2) and 26(4) of WIBA and two authorities cited by counsel, the court held that the uncontroverted claim had merit, allowed it, and entered judgment directing the respondents jointly and severally to furnish the assessment, directing the 1st respondent to settle the claim as assessed, and ordering the 1st respondent to meet the claimant's costs.

Key legal issues

Enforcement of WIBA compensation where the employer fails to disclose the DOSH assessment and pay the award

Holding

The claim was allowed; the respondents were directed to disclose the assessment and the 1st respondent to pay the assessed amount

Reasoning

The claimant pleaded and testified that he suffered a workplace injury on 17 January 2020, the DOSH form was submitted and an award of Ksh.660,832.90 assessed, but the employer refused to disclose or pay. Counsel relied on Section 51 (no objection filed), Section 10(2) (employer liability) and Section 26(4) (90-day payment period). The claim went uncontroverted as the respondents, though served, did not attend. The court held the claimant bound by his pleadings and found merit in the claim.

p. 2

Legal principles established

An uncontroverted claim under WIBA, where the employer fails to disclose or pay the assessed award, warrants orders for disclosure and payment

Court orders

1.An order directing the respondents jointly and severally to furnish the claimant with the assessment of the injury and the compensation payable following his work injury
2.An order against the 1st respondent to settle the claim as assessed by the 2nd respondent
3.The 1st respondent to meet costs due to the claimant

Authorities

Legislation

Work Injury Benefits Act (WIBA)Section 53
Work Injury Benefits Act (WIBA)Section 51
Work Injury Benefits Act (WIBA)Section 10(2)
Work Injury Benefits Act (WIBA)Section 26(4)

Cases cited (2)

Ahmed Abdullahi Musa v Director of Occupational Safety and Health Services & another
[2021] eKLR
Richard Akama Nyambane v ICG Maltauro Spa
[2020] eKLR

Jurisdiction invoked: Work Injury Benefits Act (WIBA) - enforcement of compensation rights; the 2nd respondent is an office created under Section 53 of WIBA

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ngilu v Capacity Outsourcing (K) Limited & another (Cause E061 of 2021) [2024] KEELRC 2318 (KLR)", Case Analysis (2024). Cause No E061 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2318/eng@2024-09-26

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