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ELRCPartially AllowedMisc Application No E038 of 2023· [2024] KEELRC 2688 (KLR)

Ngumbao v Royal Mark Services Limited (Miscellaneous Application E038 of 2023) [2024] KEELRC 2688 (KLR)

Employment and Labour Relations Court
31 October 2024
MMM. MBARŨ
600 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it can convert an unpaid workplace injury award into a court judgment, ordering an employer to pay an injured worker Ksh.519,378.33.

What this practically means

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Executive summary

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The applicant, a machine operator employed by the respondent at a monthly wage of Ksh.17,000, was injured on 27 July 2021 while on duty. The incident was reported to the Director of Occupational Safety and Health Services, who assessed the injuries and made an award of Ksh.519,378.33 dated 27 April 2023. By an application dated 7 September 2023, the applicant sought adoption of the Director's award as a judgment of the Employment and Labour Relations Court, issuance of a decree for that sum, and interest from the date of assessment. He asserted the award was served on the respondent, no objection or appeal was filed, and payment had not been made as required under the Work Injury Benefits Act, Section 26(4) of which obliges the employer or insurer to settle an assessed claim within 90 days. The respondent filed no reply but instead filed an application dated 11 October 2023, on which a ruling was delivered on 13 June 2024, with the court directing parties to address the instant application. In its determination, the court held that under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act it has inherent jurisdiction to adopt the Director's award for purposes of execution, citing three prior ELRC decisions. Observing that there was no contest on the injury, assessment, or non-payment, and that under Sections 7 and 10 of WIBA an employer should take insurance cover and process award payments without prejudice to the employee, the court allowed the application. The Director's award was adopted as the judgment of the court, the respondent was ordered to pay Ksh.519,378.33, and the applicant was awarded costs of the proceedings. Interest, though sought, was not granted in the final orders.

Key legal issues

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01

Jurisdiction to adopt the Director of Occupational Safety and Health Services' WIBA award as a court judgment

Holding

The ELRC has jurisdiction to adopt the Director's award for purposes of execution

Reasoning

The court grounded its jurisdiction in Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, and relied on three prior ELRC decisions adopting Director's awards. The award dated 27 April 2023 was assessed at Ksh.519,378.33 for work injuries suffered on 27 July 2021 while the applicant was employed as a machine operator.

p. 2
02

Employer's statutory obligation to settle a WIBA assessment and take insurance cover

Holding

An employer should take insurance cover and process award payments through the insurer without prejudice to the employee; failing settlement within 90 days, adoption of the award is merited

Reasoning

The court noted there was no contest that the applicant was injured at work and the Director assessed and awarded compensation, which the employer failed to pay. Under Sections 7 and 10 of WIBA the employer should take insurance cover for injured employees, and under Section 26(4) the employer or insurer must settle an assessed claim within 90 days. The respondent filed no reply.

p. 2

Legal principles established

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  • The ELRC has inherent jurisdiction to adopt as a judgment the Director's award under WIBA for purposes of execution

Court orders

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  1. 1.The award of the Director dated 27 April 2023 is adopted as the judgment of the court
  2. 2.The sum of Ksh.519,378.33 is payable to the applicant by the respondent
  3. 3.The applicant is awarded the costs of these proceedings

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Employment and Labour Relations Court ActSection 12
  • Work Injury Benefits Act (WIBA)Sections 7, 10, 26(4)

Cases cited (3)

  • Samson Chweya Mwendabole v Protective Custody Limited
    [2021] KEELRC 1809 (KLR)
  • Elijah Kisyanga Ndende v Manager Zahkem International Construction Ltd
    [2022] KEELRC 383 (KLR)
  • Odhiambo & another v Quale Holdings Ltd t/a Guyana Guest House
    [2022] KEELRC 13010 (KLR)
Jurisdiction invoked
Article 162(2)(a) of the Constitution and 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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Cite this brief

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Cite this brief

Caselaw, "Ngumbao v Royal Mark Services Limited (Miscellaneous Application E038 of 2023) [2024] KEELRC 2688 (KLR)", Case Analysis (2024). Misc Application No E038 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2688/eng@2024-10-31

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