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ELRCDismissedNot stated in judgment (Notice of Motion dated 7th June 2024)· [2024] KEELRC 2801 (KLR)

Matheka v Intercontinental Consulatants & Technocrats PVT Limited (Miscellaneous Application E173 of 2024) [2024] KEELRC 2801 (KLR)

Employment and Labour Relations Court
14 November 2024
LNLinnet Ndolo
760 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker cannot ask the Employment Court to enforce a work injury award; the court can only hear appeals from the Director's decisions.

What this practically means

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Executive summary

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The Applicant, by Notice of Motion dated 7th June 2024, sought orders compelling the Respondent to pay her Kshs. 2,500,615 as awarded by the Director of Occupational Safety and Health Services on 22nd November 2021, plus Kshs. 58,050 for treatment costs, with costs and interest. She deponed that she was injured at work on 2nd June 2021 while an employee of the Respondent, suffered a fractured right ankle assessed at 5% permanent disability, and was awarded compensation based on wages of Kshs. 42,000 per month at 96 months with 5% disability. The Respondent, through its General Manager Geofirey Kamau, opposed the application, asserting that the Applicant was engaged as an Independent Consultant Sociologist and not an employee, that the Director assessed the claim on a Form 1 filled by an unauthorised person without any inquiry as required under Section 23 of the Work Injury Benefits Act, that the award was never served, and that the claim was statute barred. The court identified the jurisdictional objection as the core issue and dealt with it first. Relying on Musembi v Great Yaduo Industry Limited, Seme v Sino Hydro Corporation, and its own earlier decision in Akhonya v Uhuru Heights Limited, the court held that the ELRC's only jurisdiction in work injury claims is appellate, and it cannot adopt or enforce awards of the Director. The application was accordingly declined with each party bearing their own costs.

Key legal issues

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01

Whether this Court has jurisdiction to direct payment of a DOSH award

Holding

The Court lacks jurisdiction; under WIBA the ELRC exercises only appellate jurisdiction over the Director's decisions, and cannot adopt/enforce the Director's award.

Reasoning

The Respondent relied on Musembi v Great Yaduo Industry Limited and Seme v Sino Hydro Corporation, both holding the ELRC's jurisdiction under WIBA is appellate. The Court cited its own prior ruling in Akhonya v Uhuru Heights Limited adopting the same position and held it could not expand its jurisdiction to matters arising in the processing of claims before the Director.

p. 2

Legal principles established

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  • The ELRC's jurisdiction under the Work Injury Benefits Act is appellate only; it cannot enforce or adopt a Director of Occupational Safety and Health Services award at first instance.

Court orders

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  1. 1.The application dated 7th June 2024 is declined
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Work Injury Benefits ActSection 23

Cases cited (3)

  • Musembi v Great Yaduo Industry Limited
    Miscellaneous Case E080 of 2022 [2022] KEELRC 13025 (KLR) (1 November 2022) (Ruling)
  • Seme v Sino Hydro Corporation Engineering Bureau 15 Co. Ltd (K)
    Miscellaneous Case E009 of 2023 [2024] KEELRC 519 (KLR) (7 March 2024) (Ruling)
  • Akhonya (suing as the Administrator of the Estate of Brian Mutambi Amakobe) (Deceased) v Uhuru Heights Limited
    Miscellaneous Application E148 of 2023 [2024] KEELRC 244 (KLR) (15 February 2024) (Ruling)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Work Injury Benefits Act (appellate only)

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, "Matheka v Intercontinental Consulatants & Technocrats PVT Limited (Miscellaneous Application E173 of 2024) [2024] KEELRC 2801 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 7th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2801/eng@2024-11-14

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