Nderi v Shieli (Employment and Labour Relations Appeal E005 of 2024) [2024] KEELRC 2593 (KLR)
The bottom line
#A Kenyan employer must pay Kshs. 1,152,000 in death compensation after its own accident notification form admitted employment, dooming its appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased was the appellant's employee injured at the workplace
The appellant admitted in ML/DOSH FORM 1 dated 5/1/2024 that the deceased was his employee of two years as a mechanic earning Kshs. 12,000 per month and that the fatal accident occurred at work; the ground of appeal was unfounded
The appellant itself completed the accident notification form affirming its designation as employer, stating the deceased was repairing a motor vehicle at the time of the accident and had worked for two years earning Kshs. 12,000 per month. The Director's decision relied on this admission to settle the employment question under section 5 of WIBA. The attempt to resile from this via written submissions failed because submissions are not pleadings and the advocate was not a witness. No contrary evidence was adduced.
Whether the claim was time-barred under section 27 of WIBA
Section 27 governs non-reporting of an accident to the employer within twelve months; it cannot be invoked by an employer who knew of the accident and filed the accident notification form, so the claim did not lapse
Section 27(1) provides that the right to benefits lapses if the accident is not reported to the employer within twelve months, but subsection (2) removes the bar where the employer had knowledge from any other source. Here the fatal accident occurred at the appellant's own garage, the appellant was notified by COSHO's letter of 29th December 2023, and the appellant completed and filed the accident notification form affirming himself as employer. Section 27 therefore had no application to defeat the dependants' claim.
Whether the certificate of dependants, which included adult children, was valid
The certificate of dependency issued by the District Commissioner was upheld; the widow and the 12-year-old child were automatic dependants, and the appellant led no evidence to displace the presumption of regularity attaching to the certificate as to the three adult children
Under section 6 of WIBA the widow and minor child are dependants without proof. The adult children's dependency required proof, which the Director did not answer with precision beyond relying on the certificate. However, the certificate was issued by a government officer, the District Commissioner, and acts of public officers are presumed regular and valid unless sufficiently shown otherwise. The appellant adduced no evidence proving the three adult children were not dependants, so the court found no basis to doubt the certificate.
Whether the award of Kshs. 1,152,000 was calculated in accordance with the scale provided by WIBA
The assessment at the declared salary of Kshs. 12,000 per month, 96 months' earnings and 100% disablement (death) was in line with sections 30, 34 and 37 of WIBA read with the First Schedule; the court had no basis to disturb it
Section 34 directs compensation for death to be paid per the Third Schedule; section 30(1) requires calculation on the basis of 96 months' earnings; and death under the First Schedule attracts 100% disablement. Section 37 deems earnings to be the monthly rate at the time of the accident, here Kshs. 12,000 as declared by the appellant in the accident form. The computation of 12,000 x 96 x 100% = 1,152,000 was therefore lawful and could not be disturbed.
Legal principles established
#- Section 27 of WIBA on lapse of the right to benefits applies only where the accident was not reported to the employer within twelve months and cannot be invoked by an employer who completed the accident notification form and knew of the accident
- Acts of public officers are presumed regular and valid unless sufficiently shown to be otherwise; a certificate of dependency issued by a District Commissioner is upheld absent evidence to displace it
- Compensation for death under WIBA is calculated on the basis of 96 months' earnings at 100% disablement under section 30 read with the First Schedule
- Facts asserted for the first time in written submissions, without supporting evidence or testimony, carry no weight
Court orders
#- 1.The appeal is dismissed
- 2.The assessment by C. Mutoro, Kakamega County Secretary to Occupational Safety and Health Officer Ref. NO. WIBA/KKM/3001/24 of 10th January 2024 being Kshs. 1,152,000/- as compensation for death as a result of accident at work is upheld and payable to the certified dependants
- 3.Costs of the appeal to the Respondent
- On appeal from
- Office of the Director / Secretary to Occupational Safety and Health Services (WIBA decision on objection)
- WIBA/KKM/3001/24
- Jurisdiction invoked
- Appellate jurisdiction under the Work Injury Benefits Act, 2007 (first-instance appeal against the Director's decision on objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderi v Shieli (Employment and Labour Relations Appeal E005 of 2024) [2024] KEELRC 2593 (KLR)", Case Analysis (2024). Ref: ML & SP/DOSHS/WIBA/KKM/3001/24 (Memorandum of Appeal dated 5th March 2024, received 25th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2593/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.