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ELRCOtherNot stated in the judgment excerpt· [2025] KEELRC 276 (KLR)

National Gender & Equality Commission v Director of Occupational Safety and Health Services & another (Civil Appeal E020 of 2022) [2025] KEELRC 276 (KLR)

Employment and Labour Relations Court
6 February 2025
LNLINNET NDOLO
575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to strike out a work injury appeal, holding that disputed facts and fraud allegations must be resolved at a full hearing.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Linnet Ndolo J, delivered virtually on 6th February 2025) determines a preliminary objection dated 7th June 2024 by the 2nd Respondent, John Nzomo Nzioka, in response to the Appellant's Memorandum of Appeal against a decision of the 1st Respondent rendered on 29th April 2021, which awarded the 2nd Respondent Kshs. 5,976,735 under the Work Injury Benefits Act. The 2nd Respondent sought dismissal of the appeal as incompetent for offending Sections 51 and 52 of that Act, contending that the appeal filed on 21st February 2022 was out of time without leave, was filed without the employer's instructions, was un-served, and was an abuse of process. The Appellant, through Festus Kithinji, a claims officer with its insurer APA Insurance Limited, opposed the objection, asserting it raised contested facts and referencing an investigation report on possible criminal fraud. The court held that the objection was entangled with numerous disputed factual questions and serious allegations of fraud against the 2nd Respondent, which cannot be resolved in limine. Without determining the merits or competency of the appeal, the court declined to summarily extinguish it. The objection was overruled with no order for costs, and the appeal was directed to proceed to hearing on merit.

Key legal issues

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01

Whether an appeal under the Work Injury Benefits Act can be struck out via an objection where the competency grounds depend on disputed facts and allegations of fraud

Holding

The objection was overruled; the appeal proceeds to full hearing

Reasoning

The court found that the objection rested on contested factual matters - the timing and service of the appeal, instructions to the appellant's advocates, and an alleged fraud investigation - none of which can be resolved summarily on an objection. The court expressly declined to determine the merits of the appeal or the competency question at that stage, holding that only a full hearing can resolve the disputes.

p. 2

Legal principles established

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  • An objection/preliminary objection cannot be used to summarily extinguish an appeal where contested matters of fact and allegations of fraud arise

Court orders

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  1. 1.The 2nd Respondent's preliminary objection dated 7th June 2024 is overruled with no order for costs
  2. 2.The appeal to proceed to hearing on merit

Authorities

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Legislation

  • Work Injury Benefits ActSection 51
  • Work Injury Benefits ActSection 52
On appeal from
Director of Occupational Safety and Health Services (1st Respondent's decision under the Work Injury Benefits Act)
Jurisdiction invoked
Appellate jurisdiction under the Work Injury Benefits Act (Sections 51 and 52 engaged by the objection)

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, "National Gender & Equality Commission v Director of Occupational Safety and Health Services & another (Civil Appeal E020 of 2022) [2025] KEELRC 276 (KLR)", Case Analysis (2025). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/276/eng@2025-02-06

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