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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 173 (KLR)

Kimiyu v Career Directions Limited & another (Miscellaneous Application E001 of 2022) [2025] KEELRC 173 (KLR)

Employment and Labour Relations Court
23 January 2025
2,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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An employer who ignores the 60-day window to object to a workplace injury award cannot fight it in court years later.

What this practically means

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Executive summary

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The Applicant, Paul Mbithi Kimiyu, moved the Employment and Labour Relations Court at Eldoret by an application dated 1st March 2022 seeking adoption of the award of the Director of Occupational Safety and Health made on 15th September 2019 as an order of the Court. He had been injured on 25th April 2017 while working at the 2nd Respondent's premises under the 1st Respondent's engagement, fracturing his right leg after being hit by a precast plant mixer arm. The Director awarded him Kshs 115,437, which remained unpaid despite a demand letter of 15th July 2020. The 1st Respondent opposed adoption, contending it was never heard before the award was made, learned of it only after the statutory objection period had lapsed, that the award wrongly included loss of earnings when it had continued paying his salary, and that the engagement was a contract for service. It also sought, by replying affidavit, to recover Kshs 257,369 allegedly paid in excess. In a ruling delivered on 23rd January 2025, Maureen Onyango, J held the objections fallacious: the 1st Respondent itself reported the accident and supplied the salary particulars in DOSH Form 1; it never lodged the objection or appeal available under sections 51 and 52 of the Work Injury Benefits Act despite receiving the demand letter and particulars; and it was therefore estopped from resisting adoption. The claim to recover overpayments failed for want of a substantive application and evidence of error. The court adopted the award, entered judgment for Kshs 115,437 with costs, and ordered interest from the date of filing the application.

Key legal issues

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01

Whether the 1st Respondent was denied natural justice in the Director's award process

Holding

No — the 1st Respondent itself reported the accident and supplied the salary figures used, and it never attempted to object or appeal within the statutory window.

Reasoning

Under section 22 of WIBA the employer must report an accident to the Director. The 1st Respondent annexed the DOSH Form 1 by which it made the report, and the same form contained the salary figure used to compute compensation. It could not complain of being condemned unheard when it participated in and supplied the material for the process, and after receiving the demand letter it requested particulars and then went silent without lodging any objection or appeal.

p. 4
02

Whether the Director's award should be adopted as an order of the Court

Holding

Yes — the award was adopted and judgment entered for Kshs 115,437 with costs and interest from filing.

Reasoning

Sections 51 and 52 of the Work Injury Benefits Act allow an aggrieved person to object within sixty days and appeal to the Industrial Court within thirty days of the Director's reply. The 1st Respondent did neither, nor did it seek leave to object out of time upon being served with the application. Having slept on its rights, it was estopped from resisting adoption, and the award was adopted as an order of the court.

p. 5
03

Whether the 1st Respondent could recover payments allegedly made in error/excess

Holding

No — no substantive application was made and no evidence of error; payments were voluntary.

Reasoning

The counterclaim was raised only in a replying affidavit without a substantive motion. On the evidence the 1st Respondent voluntarily continued paying the Applicant's salary during his incapacitation and cannot reclaim those payments merely because he was awarded compensation for his injuries.

p. 4

Legal principles established

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  • A party that reported the accident to the Director and furnished the salary particulars used to compute compensation cannot later claim it was condemned unheard.
  • Failure to lodge an objection or appeal against the Director's award within the statutory period estops a party from objecting to it at the adoption stage.

Court orders

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  1. 1.The award of the Director of Occupational Safety and Health is adopted as an award of this court and judgment is entered against the 1st Respondent in the sum of Kshs 115,437 with costs
  2. 2.Interest shall accrue from the date of filing the application in this court
  3. 3.Costs of the application to the Applicant

Authorities

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Legislation

  • Work Injury Benefits Actsection 22
  • Work Injury Benefits Actsection 28(4)
  • Work Injury Benefits Actsections 51 and 52
  • Employment Actsection 19
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Samson Chweya Mwendabole v Protective Custody Limited
  • Joash Shisisa Cheto v Thepot Patrick Charles
  • Elijah Kisyanga Ndede v Manager Zakhem International Construction Ltd
  • Stephen Wangusi Nyongesa v Dot.Com Bakery Limited
  • Egal Mohammed Osman v Inspector General of Police & 3 others
  • The Management Committee of Makondo Primary School and another v Uganda National Examination Board
Jurisdiction invoked
Sections 51 and 52 of the Work Injury Benefits Act (adoption of the Director of Occupational Safety and Health's award as an order of the Court)

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, "Kimiyu v Career Directions Limited & another (Miscellaneous Application E001 of 2022) [2025] KEELRC 173 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/173/eng@2025-01-23

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