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ELRCPartially AllowedMisc Application No E048 of 2024· [2024] KEELRC 2805 (KLR)

AON Hauliers Limited v Ngele (Suing as the Administrator of the Estate of Jason Mwachienda (Deceased)) & another (Miscellaneous Application E048 of 2024) [2024] KEELRC 2805 (KLR)

Employment and Labour Relations Court
14 November 2024
1,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut a work injury award debt to Ksh.947,500 after undisclosed settlement payments, freed the attached vehicle, and refused to excuse the employer's absent lawyers.

What this practically means

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Executive summary

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The applicant employer sought stay of execution, release of motor vehicle KBU 393Q and setting aside of a decree of 16 August 2024 adopting the Director's WIBA assessment of Ksh.1,920,000 in favour of the 1st respondent, the widow of Jason Mwacheda, an employee who died in a workplace accident at Malaba on 18 September 2019. The applicant argued that the 1st respondent concealed a settlement: Ksh.250,000 paid on 31 August 2020 for burial expenses and Ksh.722,500 paid on 27 October 2023 under a discharge voucher, and that its advocates' non-attendance at the hearing of the adoption applications should not be visited on it. The 1st respondent contended the settlement was signed under coercion and execution for the balance was regular. The court held there was proper service and that an instructed advocate's non-attendance is professional negligence for which the remedy lies against the advocates, applying Thomas Ratemo Ongeri and Jack K. Githae. However, the court found the 1st respondent failed to disclose the Ksh.250,000 payment, rendering the decree erroneous. It held that a private consent agreement cannot negate a Director's award, and any out-of-court settlement should have been sanctioned by the Director. The court offset payments of Ksh.972,500 and found Ksh.947,500 due, payable within 30 days, ordered unconditional release of the motor vehicle, and directed that costs due to the 2nd respondent be taxed and shared equally between the applicant and 1st respondent.

Key legal issues

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01

Effect of an advocate's failure to attend despite proper service

Holding

The ex parte orders of 2 July 2024 stand on the facts presented; the applicant's remedy is against its advocates

Reasoning

The applicant admitted service and that it instructed advocates who failed to file responses or attend. The court, following Thomas Ratemo Ongeri and Jack K. Githae, held that an instructed advocate has a professional duty to attend and failure is professional negligence to be addressed with the Advocates Complaints Commission. The client must also follow up on appointed dates. Reliance on the advocate's mistake as a panacea was rejected.

p. 3
02

Whether the settlement payments should offset the Director's WIBA award

Holding

The payments are credited, reducing the enforceable balance to Ksh.947,500, but the decree based on the erroneous full figure is corrected

Reasoning

The 1st respondent admitted receiving Ksh.250,000 for burial expenses and Ksh.722,500 under the settlement. However, the 1st respondent failed to disclose the Ksh.250,000 payment in the application to adopt the award, so the decree of Ksh.1,920,000 rested on an erroneous figure. The court offset total payments of Ksh.972,500 and found Ksh.947,500 due, directing release of the attached vehicle upon payment within 30 days.

p. 4
03

Whether a private settlement can defeat a WIBA Director's award

Holding

No; any out-of-court settlement of a Director's assessment should be sanctioned by the Director and audited against Section 35(4) of the Employment Act

Reasoning

The court reasoned that the purpose of Section 10 of WIBA would be lost if an insured employer's cover is not utilized for work injuries. The Director's assessment secures employee rights, is payable by the employer on notice, and dissatisfied employers have statutory objection or appeal routes. A consent agreement between the parties cannot negate the award; the settlement should have been sanctioned by the Director.

p. 4

Legal principles established

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  • A private consent agreement between the parties cannot be used to negate a Director's award under WIBA; any out-of-court settlement of the award should have been sanctioned by the Director
  • Non-attendance by an instructed advocate is professional negligence and the remedy lies against the advocate, not by disturbing the other party

Court orders

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  1. 1.The balance due to the 1st respondent from the Director's award of Ksh.1,920,000 is Ksh.947,500, payable within the next 30 days
  2. 2.The 2nd respondent shall unconditionally release the applicant's motor vehicle KBU 393Q
  3. 3.Costs due to the 2nd respondent are to be taxed and paid by the applicant and the 1st respondent each at 50%

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 25; Order 10 Rule 11; Order 51 Rule 1
  • Civil Procedure ActOrder 9 rule (c)
  • Work Injury Benefits ActSection 10
  • Employment ActSection 35(4)

Cases cited (3)

  • Thomas Ratemo Ongeri, Paul Ondigi Ongeri & Charles Moriga Ongeri v Zachariah Isaboke Nyaata & Augustino Obaigwa Nyakundi
    [2014] KEHC 6773 (KLR)
  • Jack K. Githae v Kenya Commercial Bank Limited & Watt Enterprises
    [2011] KLR
  • Law Society of Kenya v The Attorney General & COTU
    Petition No.4 of 2019
Jurisdiction invoked
Order 22 Rule 25, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules

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, "AON Hauliers Limited v Ngele (Suing as the Administrator of the Estate of Jason Mwachienda (Deceased)) & another (Miscellaneous Application E048 of 2024) [2024] KEELRC 2805 (KLR)", Case Analysis (2024). Misc Application No E048 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2805/eng@2024-11-14

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