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ELRCStruck OutNot stated in judgment· [2024] KEELRC 2685 (KLR)

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)

Employment and Labour Relations Court
31 October 2024
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants appealed against the Director of Occupational Safety and Health Services' assessment of work injury compensation of Ksh.1,612,800 to the Estate of the late Muinde Mwendwa, issued on 26 May 2022 under Section 30 of WIBA read with the First Schedule. The 1st respondent raised preliminary objections that the Employment and Labour Relations Court lacked jurisdiction because no objection was lodged with the Director under Section 51(1) and no reply was secured under Section 52(1) of WIBA before the appeal was filed, and that the appeal was filed out of time without leave. The 2nd and 3rd respondents supported the objections, noting the award had been paid. The appellants relied on Article 162(2)(a), the court's inherent jurisdiction under Section 12 of the ELRC Act, and the absence of a procedure where the Director fails to reply to objections. The court applied the statutory scheme under Sections 51 and 52 of WIBA, reinforced by the Supreme Court's decision in Law Society of Kenya v Attorney General & COTU (Petition 4 of 2019), holding that the objection process is a mandatory pre-court dispute-resolution mechanism. Since no objections were lodged and the appeal was filed well beyond the 30-day period with no extension application, the appeal was premature and incompetent. The objections were upheld, the appeal dismissed, the 1st respondent awarded full costs, and the 2nd and 3rd respondents 25% of due costs. Delivered at Mombasa on 31 October 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Exhaustion of statutory remedies under WIBA

Holding

The appeal was premature because no objection was lodged under Section 51(1) and no Director's reply secured under Section 52(1)

Reasoning

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.

p. 4
02

Time limits and competency of the appeal

Holding

The appeal filed on 20 February/March 2023, beyond 30 days from the 26 May 2022 decision and without any extension application, was incompetent

Reasoning

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.

p. 6
03

Whether the Director's assessment should be disturbed

Holding

The assessment under the First Schedule was not disturbed; the court accepted the respondents' position that the Director applied correct dependency percentages

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 1st respondent's preliminary objections upheld
  2. 2.The appeal dismissed for being premature and filed out of time
  3. 3.The 1st respondent awarded full costs
  4. 4.The 2nd and 3rd respondents awarded 25% of due costs

Authorities

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Legislation

  • Work Injury Benefits ActSections 6, 16, 17(no - 23, 30, 34, 51(1), 52(1), 52(2), First Schedule, Third Schedule
  • Constitution of Kenya, 2010Article 159, Article 162(2)(a)
  • Employment and Labour Relations Court ActSections 3, 12, 17
  • Employment and Labour Relations Court (Procedure) RulesRules 8, 16
  • Civil Procedure Act (via reference to Section 79G)Section 79G

Cases cited (10)

  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
  • Douglas Shikoli Nasiali v Citam Schools Woodley
    [2021] eKLR
  • Haji v C.G. (MSA) Limited
    Misc. Application E006 of 2024
  • African Service Maintenance Limited v Comarco Supply Base (EPZ) Limited & another
    Civil Appeal 160 of 2019
  • Esther Anyango Ochieng v Transmara Sugar Company
    [2020] eKLR
  • Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base
    [2013] eKLR
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
  • Sheikh v Inspector General of Kenya Police & another
    Misc. Application E821 of 2022
  • Law Society of Kenya v Attorney General and COTU
    Petition No.4 of 2019
  • Moses Mwangi Kimani v Shammi Kanjirappaarambi Thomas & 2 others
    [2014] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.