Masai & another (Suing as Administrators of the Estate of the Late Muinde Mwendwa) v China Communication Construction Company Limited & 2 others (Appeal E003 of 2023) [2024] KEELRC 2685 (KLR)
The bottom line
#The Employment and Labour Relations Court struck out a work injury compensation appeal because the family skipped a mandatory objection step with the Director and filed too late.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of statutory remedies under WIBA
The appeal was premature because no objection was lodged under Section 51(1) and no Director's reply secured under Section 52(1)
The court examined the statutory scheme: an aggrieved party must lodge an objection with the Director within 60 days, the Director replies within 14 days, and only then may an appeal lie within 30 days under Section 52(2). The Supreme Court in LSK v AG & COTU confirmed this as a dispute-resolution mechanism. Filing a direct appeal circumvents Sections 51 and 52(1), invalidating the appeal.
Time limits and competency of the appeal
The appeal filed on 20 February/March 2023, beyond 30 days from the 26 May 2022 decision and without any extension application, was incompetent
The Director's decision was made on 26 May 2022. Section 52(2) allows 30 days to appeal. No objections or appeals were filed within the statutory period and no application to extend time was made. The delay was incurable and rendered the appeal fatally defective.
Whether the Director's assessment should be disturbed
The assessment under the First Schedule was not disturbed; the court accepted the respondents' position that the Director applied correct dependency percentages
The 2nd and 3rd respondents submitted that the award was issued under Section 30 read with the First Schedule, accounting for varying degrees of dependence under Section 6 (widow and child at 100%, parents at 20%). The appellants' reliance on the Third Schedule at 27.5% was said to be misconceived. In light of the finding on jurisdiction, no merits determination was required.
Legal principles established
#- The right of appeal under Section 52(1) of WIBA accrues only after an objection has been lodged with the Director under Section 51(1); filing an appeal without exhausting that procedure is premature and invalid
Court orders
#- 1.The 1st respondent's preliminary objections upheld
- 2.The appeal dismissed for being premature and filed out of time
- 3.The 1st respondent awarded full costs
- 4.The 2nd and 3rd respondents awarded 25% of due costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution; Sections 51 and 52 of the Work Injury Benefits Act; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Priyguru Limited v Tuyisenge (Suing as an Administrator and Personal Representative of the Estate of Emmanuel Ndayizeye) (Employment and Labour Relations Appeal E356 of 2024) [2025] KEELRC 2135 (KLR)[2025] KEELRC 2135 (KLR)18 Jul 2025
- Priyguru Limited v Tuyisenge (Suing as an Administrator and Personal Representative of the Estate of Emmanuel Ndayizeye) (Employment and Labour Relations Appeal E356 of 2024) [2025] KEELRC 2135 (KLR)[2025] KEELRC 2135 (KLR)18 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Masai & another (Suing as Administrators of the Estate of the Late Muinde Mwendwa) v China Communication Construction Company Limited & 2 others (Appeal E003 of 2023) [2024] KEELRC 2685 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2685/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.