Luseno v China Communicaion & Contruction Company Limited (Miscellaneous Application E135 of 2023) [2024] KEELRC 2326 (KLR)
The bottom line
#Kenya's Employment Court confirmed it will enforce an unchallenged DOSH work injury award in full, and employers cannot dodge payment by raising objections too late.
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 court should adopt the DOSH assessment of 2nd July, 2020 as its judgment and enforce the balance of Kshs 1,162,270/-
- 2.Whether the purported revised evaluation of 25th March, 2021 reducing compensation could stand
- 3.Whether the Respondent, having filed no objection or appeal under the WIBA, could challenge the Director's award
Key legal issues
#Enforceability of a DOSH award against a reluctant employer
The ELRC can be moved, in miscellaneous/summary form, to enforce the Director's award as a judgment of the court.
The court adopted the position in Joash Shisia Cheto v Thepot Patrick Charles that WIBA provides no mechanism for enforcing the Director's award, creating a lacuna. The holder may invoke the ELRC's jurisdiction under Article 162 of the Constitution read with section 12 of the ELRC Act, and such proceedings may be by way of miscellaneous causes confined to enforcement only.
Validity of the revised DOSH evaluation reducing compensation to Kshs 686,145/-
The revised evaluation could not stand because it was based on an erroneous medical report referring to injuries the Applicant did not sustain and was disowned by DOSH.
The court noted the revised evaluation referred to injuries to the right lower limbs and knee, whereas the Applicant injured his left leg. The Director's letter of 27th October, 2022 disowned the evaluation as erroneous. A reduction founded on an erroneous medical report could not stand against the unappealed 2nd July, 2020 assessment.
Whether the Respondent could dispute the award absent objection or appeal
Having filed no objection within 60 days and no appeal under section 52 WIBA, the Respondent could not challenge the award, and the issues raised in the Replying Affidavit could not be substantiated.
The court held that the Respondent's remedy was to lodge an objection within 60 days under section 51 WIBA and, if unsatisfied, to appeal under section 52. None was preferred, nor had the Respondent set aside or stayed the award. The issues raised in the Replying Affidavit therefore could not be substantiated and the Applicant should enjoy the fruits of the assessment.
Legal principles established
#- An unchallenged DOSH award must be objected to within 60 days and, absent objection or appeal, the court will enforce it as judgment without revisiting the merits.
- The court on enforcement of a Director's award cannot consider the merits of the award; that jurisdiction is the preserve of the Director, subject to appeal under section 52 WIBA.
Court orders
#- 1.The Director's award of 2nd July, 2020 adopted as decree of the court
- 2.Judgment entered for the Applicant for the outstanding balance of Kshs 1,162,270/-
- 3.The award to attract interest at court rates from the date of the award until payment in full
- 4.Costs awarded to the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162 of the Constitution as read with section 12 of the ELRC Act (enforcement of DOSH award under WIBA)
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.
the valid DOSH award remains that of 2nd July,2020 of Kshs 1,274,270 which stands not challenged or appealed by the Respondent as per Section 51 of the WIBA which requires that an objection ought to be filed within 60 days after the assessment.
Unless by way of appeal under section 52 of the WIBA, it is not open to the court to consider the merits of the Director's award or indeed go on a fact finding mission. This jurisdiction is the preserve of the Director.
In conclusion the Applicant's Application dated 21st June, 2023 is found merited and the court adopts the director's award of 2nd July, 2020 as decree of the court and enters judgment for the outstanding balance of Kshs 1,162,270/=.
Issues in the judgment
#Amount partially paid is stated inconsistently in the judgment: Kshs 112,468/= in the Applicant's averment versus Kshs 112,000/= in the court's own analysis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luseno v China Communicaion & Contruction Company Limited (Miscellaneous Application E135 of 2023) [2024] KEELRC 2326 (KLR)", Case Analysis (2024). Miscellaneous Application dated 21st June, 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2326/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.