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ELRCPartially AllowedNotice of Motion dated 2nd August 2024

Peter v Gitau (Miscellaneous Application E021 of 2024) [2025] KEELRC 55 (KLR)

Employment and Labour Relations Court
23 January 2025
OMONESMUS N MAKAU
1,541 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 confirmed that time to enforce a workplace injury compensation award starts when the DOSH decision is issued, not the accident date.

What this practically means

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Executive summary

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The applicant was injured at work on 6th November 2020. On 19th July 2023 the Director of Occupational Safety and Health (DOSH) assessed his compensation at Kshs.642,577. The respondent failed to comply with the demand to pay, prompting the applicant to file a Notice of Motion dated 2nd August 2024 seeking to have the DOSH award adopted and enforced as a decree of the court. The respondent filed a Notice of Preliminary Objection on two grounds: that the enforcement application was statutorily time barred under section 90 of the Employment Act read with the Limitation of Actions Act, and that the compensation claim was lodged more than 12 months after the accident, contrary to sections 26 and 27 of the Work Injury Benefits Act (WIBA). The court framed two issues: whether the motion was time barred and whether the claim was lodged out of time. On limitation, the court held that the cause of action in Work Injury claims arises on the date the Director publishes the assessed compensation, since the statutory procedure under WIBA must first be exhausted before a party may sue. Following Elijah Kisyanga Ndende v Manager Zahken International Construction Ltd, the court held that time runs from the Director's decision, and the application filed about one year later was not time barred. On the WIBA point, the court held that whether the claim was lodged within 12 months or the accident was reported are questions of fact requiring evidence and are therefore improper grounds for a preliminary objection, applying the Mukisa Biscuits principle. The court dismissed the preliminary objection, allowed the motion in terms of prayers 2, 3 and 5, and awarded interest at court rates from the date of filing the motion until payment in full, declining interest from the date of the award so as not to encourage delay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's motion is time barred
  2. 2.Whether the applicant's claim for compensation was lodged out of time

Key legal issues

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01

When time begins to run for enforcement of a DOSH award under WIBA

Holding

The application was not time barred; time runs from the date of the Director's decision or its communication to the parties, not the date of the accident

Reasoning

The claim is anchored on a contract of employment, but under section 16 of WIBA the statutory alternative procedure must be exhausted before a party has any right to sue. The cause of action therefore arises when the Director publishes the assessed compensation, as that is the date under section 51 of WIBA when an aggrieved party may challenge the decision. The application filed about one year after the award was within three years and the delay was not unreasonable.

p. 3
02

Whether lodging the compensation claim more than 12 months after the accident is a proper ground for a preliminary objection

Holding

No - whether the claim was lodged or the accident reported within time are questions of fact requiring evidence, and cannot be resolved by a preliminary objection

Reasoning

The respondent objected that the claim was lodged outside the 12-month period under sections 26 and 27 of WIBA. The court held that whether the applicant lodged his claim within the statutory period or reported the accident to the employer are matters of fact provable only by evidence, so such objections are improper preliminary objections under the Mukisa Biscuits principle, which requires a pure point of law on assumed facts.

p. 3

Legal principles established

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  • In Work Injury claims, the cause of action and limitation period run from the date the Director of Occupational Safety and Health publishes or communicates the assessed compensation, not from the date of the accident
  • A preliminary objection cannot be sustained where determination of the issue requires ascertainment of facts by evidence

Court orders

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  1. 1.Dismissal of the respondent's Notice of Preliminary Objection dated 9th October 2024
  2. 2.Allowance of the Notice of Motion dated 2nd August 2024 in terms of prayer 2, 3 and 5 (adoption and enforcement of the DOSH award of Kshs.642,577 as a decree of the court)
  3. 3.Award of interest at court rates from the date of filing the motion till payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OM
majority

Wrote the judgment

Jurisdiction invoked
Inherent power of the court to adopt and enforce the Director of Occupational Safety and Health (DOSH) award under the Work Injury Benefits Act as a decree of the court

Relief refused

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Interest from the date of the DOSH award

The court awarded interest only from the date of filing the motion, reasoning that interest from the date of the award would encourage delay in coming to court

p. 4

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having found that the application before the court is not time barred, I dismiss the Notice of Preliminary Objection by the respondent and allow the Notice of Motion dated 2nd August 2024 in terms of prayer 2, 3 and 5.
p. 4Disposition - preliminary objection dismissed, motion allowed
I further award the applicant interest at court rates from the date of filing the motion till payment in full. I say so because awarding interest from the date of the award would encourage parties to delay coming to court.
p. 4Interest order and rationale
Applying the foregoing definition to this case, I find that the cause of action arose on the day the Director DOSH published the assessed compensation to the parties.
p. 3Accrual of cause of action in Work Injury claims
For purpose of suits or applications for enforcement of decisions and/or assessment made by the director of Occupational Safety and Health Services under the work injury benefits Act, time in my view starts running from the date the director's decision is received by the employer.
p. 3Limitation - time runs from Director's decision (adopted from Elijah Kisyanga Ndende)

Issues in the judgment

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minor

The judgment inconsistently cites section 4(2) and section 42(2) of the Limitation of Actions Act for the same preliminary objection

minor

The judgment states the application for enforcement was filed on 8th August 2024 while the motion is dated 2nd August 2024

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, "Peter v Gitau (Miscellaneous Application E021 of 2024) [2025] KEELRC 55 (KLR)", Case Analysis (2025). Notice of Motion dated 2nd August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/55/eng@2025-01-23

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