Dock Workers Union (K) v Director of Occupational Safety and Health Services & 5 others; Federation of Kenya Employers & another (Interested Parties) (Petition E004 of 2024) [2025] KEELRC 51 (KLR)
The bottom line
#Kenya's employment court dismissed the Dock Workers Union's attempt to overturn a Ksh.16.4 million compensation order for an employee's death on duty.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Leonard Ochieng was properly authorised to file and represent the petitioner in the proceedings
- 2.Whether the order issued by the 1st respondent through DOSH/WIBA 4 is lawful under Section 53 of WIBA
- 3.Whether the accident which occasioned the death of the deceased constitutes an occupational accident
- 4.Whether the 1st respondent has a mandate under Sections 28 and 30 of WIBA to issue an order for work injury compensation
- 5.Whether the court should quash the order dated 11 March 2022 issued by the 1st respondent under DOSH/WIBA 4
- 6.Whether an order should be issued prohibiting proceedings in Mombasa Misc. Application No. E016 of 2014 [2024]
- 7.Who should pay the costs
Key legal issues
#Whether the petition was properly filed by an authorised representative
The petition was filed by Leonard Ochieng without written authority under Section 2 of the LRA; the later Letter of Authority could not cure the defect, invalidating the petition
Section 2 of the LRA vests authority to act for a trade union in the general secretary, who may appoint another person in writing. Leonard Ochieng was neither an officer nor an employee of the petitioner nor an advocate under Section 20 of the ELRC Act. The Letter of Authority was only filed later in a supplementary affidavit, and delegated authority cannot be assumed or applied retrospectively.
Whether the DOSH/WIBA 4 order was lawfully issued under Section 53 of WIBA
Yes. The Director defined in Section 2 of WIBA as the Director of Occupational Safety and Health Services is the same officer; WIBA must be read as a whole
The court held that Sections 2 and 53 of WIBA cannot be separated, since 'Director' under WIBA means the Director of Occupational Safety and Health Services. Reading each section exclusively would negate the statute's purpose of providing compensation for work-related injuries. The petitioner had rights of objection and appeal under Sections 51 and 52 of WIBA but did not use them.
Whether the death of the deceased constituted an occupational accident/work injury
Yes. The deceased died in the course of his employment while responding to gunshots directed at a colleague collecting union funds
The court found a causal connection between the deceased's duties and the fatal shooting: he was on duty knowing Kenga had gone to collect cash to pay shop stewards. Applying Fenton v Thorley, an accident is any unintended and unexpected occurrence producing hurt or loss; the criminal act did not remove the injury from the course of employment.
Whether certiorari and prohibition should issue
No. The assessment was lawful and unappealed, and the enforcement proceedings could not be negated by a petition filed after the fact
The petitioner never objected under Section 51 or appealed under Section 52 of WIBA. The enforcement cause in Mombasa Misc. Application No. E016 of 2014 [2024] had concluded, and the petitioner failed to attend despite being invited. Judicial review remedies were not appropriate where statutory appeal mechanisms were ignored.
Legal principles established
#- Delegated authority to represent a trade union must be in writing and cannot be conferred after the fact to sanitise proceedings
- An accident causing injury to or death of an employee in the course of duties falls within WIBA, and the employer must compensate; third-party criminal conduct does not extinguish employer liability
Court orders
#- 1.The petition is dismissed
- 2.Costs awarded to the respondents and the 2nd interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act; supervisory jurisdiction under Article 165(6)
Relief refused
#Declaration that the DOSH/WIBA 4 order dated 11 March 2022 was unlawfully issued
The Director under WIBA and OSHA is the same office; the notice was lawful and legitimate
Declaration that the death of the deceased did not constitute an occupational accident
There was a causal connection between the employee's duties and the fatal injury
Order of certiorari to quash the assessment dated 11 March 2022
The order was lawful; no objections or appeals were filed under Sections 51 or 52 of WIBA
Order of prohibition against proceedings in Mombasa Misc. Application No. E016 of 2014 [2024]
The enforcement proceedings were lawful and the petitioner failed to participate in them
Declaration that the 2nd and 3rd respondents are liable for accidents caused by criminals
The employer's liability under WIBA cannot be diverted to the police respondents
Costs
Costs to the respondents and the 2nd interested party
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the petition is hereby dismissed. Costs to the respondents and the 2nd interested party.
Such authority cannot be applied after the fact to sanitize the proceedings. He is not a proper party to file this petition.
In this case, the court finds the deceased, 2nd interested party sufiered death during his employment. The petitioner as the employer is liable to pay compensation under WIBA.
A proper reading of Section 53 and 2 of WIBA cannot be separated.
There are no objections or appeals under Section 51 or 52 of WIBA respectively.
Issues in the judgment
#Internal inconsistency on the year of the enforcement proceedings: cited as E016 of 2014 in the prayers and determination but as E016 of 2024 elsewhere
Paragraph 64 of the judgment states the death 'does not amount to an occupational accident' in the 2nd interested party's submissions, apparently a drafting error contradicting the court's finding and the rest of that paragraph
Conflicting dates for the DOSH 1 report: 8 February 2020 in paragraph 27 and 9 March 2022 in paragraph 28
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dock Workers Union (K) v Director of Occupational Safety and Health Services & 5 others; Federation of Kenya Employers & another (Interested Parties) (Petition E004 of 2024) [2025] KEELRC 51 (KLR)", Case Analysis (2025). Petition dated 6 May 2024 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/51/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.