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ELRCAllowedStatement of Claim dated 18th March 2024· [2024] KEELRC 2636 (KLR)

Atswenje v Butali Sugar Mills Ltd (Employment and Labour Relations Cause E004 of 2024) [2024] KEELRC 2636 (KLR)

Employment and Labour Relations Court
24 October 2024
5,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can enforce workplace injury awards if employers fail to object in writing within 60 days.

What this practically means

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Executive summary

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The Claimant, a driver employed by the Respondent, sustained injuries in a road traffic accident on 21st May 2020 in the course of his duties. The Respondent notified DOSH Kakamega, which on 31st August 2021 awarded compensation of Kshs. 442,633.35. The Respondent obtained a second medical assessment (0% disability as against DOSH's 30%) in November 2021 but never lodged a written objection with DOSH within the 60-day period under section 51 of the Work Injury Benefits Act. The Claimant sought adoption of the DOSH award as a judgment of the ELRC, with costs and interest. The Respondent opposed, contending there was no final award, that the claimant had not exhausted dispute-resolution avenues, that section 28(4) WIBA barred periodical payments during full pay, and that adoption would amount to double compensation. The Court framed three issues: its jurisdiction, the validity of the DOSH assessment, and entitlement to relief. Holding that the Court's jurisdiction flows from Article 162(2)(a) of the Constitution guided by Article 159, and that contrary case law declining adoption was not binding, the Court found that the failure to lodge a written objection within 60 days rendered the award final; a contrary medical report was not a section 51 objection; and the Respondent forfeited its right to dispute the award. Defences on double compensation were dismissed as afterthoughts. The Court allowed the claim, adopted the award as its order, awarded interest at court rates if unpaid within 30 days, and awarded costs to the Claimant. The Court also called on Parliament to amend WIBA to provide an express enforcement mechanism.

Key legal issues

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01

Whether the Court has jurisdiction to adopt and enforce DOSH awards

Holding

The Court holds it has jurisdiction to adopt DOSH awards as Orders of the Court for enforcement, drawing on its general jurisdiction under Article 162(2)(a) and Article 159, and noting rule 69 of the ELRC Rules 2024 now regularises the position.

Reasoning

WIBA is silent on enforcement of DOSH awards by adoption. The Court reasoned that it is the only superior court with employer-employee dispute jurisdiction, that work injury claims emanate from employment, and that Article 159(2)(d) obliges substantive justice. Rule 69 of the Court Rules 2024, permitting adoption of decisions reached in Alternative Justice Systems, now regularises the position, though the Court based its decision on its general jurisdiction.

p. 9
02

Whether there was a valid and final DOSH assessment

Holding

The award of 31st August 2021 became final because no written objection was lodged within 60 days under section 51 WIBA; the Respondent's contrary medical report did not constitute an objection.

Reasoning

RW1 confirmed no written objection was received within 60 days; the Respondent's response of 29th January 2024 came almost two years and four months after the award. Section 51 requires a written objection in the prescribed form. The Respondent's reliance on a second medical assessment did not satisfy this, and issues such as section 28(4) WIBA were raised too late and are afterthoughts.

p. 6
03

Whether the Claimant is entitled to the reliefs sought

Holding

The claim is allowed; the award of Kshs. 442,633.35 is adopted as an order of the Court, with interest if unpaid within 30 days, plus costs.

Reasoning

Since the award was final and unchallenged, the Court found no reason not to enforce it. The Respondent's defences on double compensation and section 28(4) WIBA were matters that should have been raised as objections under section 51 within 60 days and could not be entertained at that late stage.

p. 10

Legal principles established

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  • An unobjected-to DOSH award becomes final after expiry of the 60-day window under section 51 WIBA and a contrary medical assessment does not amount to a written objection.
  • The ELRC has jurisdiction to adopt DOSH awards as orders of the Court for enforcement where there is no appeal or valid objection.
  • A respondent who fails to lodge a written objection under section 51 WIBA forfeits the right to dispute the award.

Court orders

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  1. 1.The Award of the Director of Occupational Safety and Health issued in favour of the Claimant in the sum of Kshs. 442,633.35/- on 31st August 2021 is adopted as an Order of the Court against the Respondent
  2. 2.The Award amount to attract interest at Court rates if not settled in full within 30 days of the judgment
  3. 3.Costs of this suit to the Claimant

Authorities

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Legislation

  • Work Injury Benefits Actsection 51
  • Work Injury Benefits Actsection 52
  • Work Injury Benefits Actsection 28(4)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 162(2)(a)
  • Employment and Labour Relations Court (Procedure) Rules, 2024rule 69
  • Employment Actreferenced in section 28(4) WIBA quote

Cases cited (10)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Adika v Supra Textiles Limited
    Misc. Appl. No. E096 of 2022
  • Lameck Nyakundi Ayona v WJJ Kenya Construction Company Limited
    (2022) eKLR
  • Seme v Sino Hydro Corporation Engineering Bureau Co. Ltd (K)
    (Miscellaneous Application E009 of 2023) [2024] KEELRC 517 (KLR)
  • Felix Makori Omosa v Manji Food Industries Limited
    [2021] eKLR
  • Mutegi v Teachers Service Commission & another
    (Cause E140 of 2023) [2023] KEELRC 2720 (KLR)
  • Omutiti v Orpower 4 Inc
    (Employment and Labour Relations Appeal 12 of 2021) [2023] KEELRC 1974 (KLR)
  • Ruth Wambui Mwangi & Another v Alfarah Wholesalers Limited
    (2017) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (employer-employee disputes jurisdiction), guided by Article 159, and sections 51-52 of the Work Injury Benefits Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Atswenje v Butali Sugar Mills Ltd (Employment and Labour Relations Cause E004 of 2024) [2024] KEELRC 2636 (KLR)", Case Analysis (2024). Statement of Claim dated 18th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2636/eng@2024-10-24

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