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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 321 (KLR)

Nduwa v Bash Hauliers Limited (Miscellaneous Application E126 of 2024) [2025] KEELRC 321 (KLR)

Employment and Labour Relations Court
6 February 2025
1,662 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 confirmed injured workers can enforce unpaid workplace injury compensation awards directly, ordering an employer to pay over Ksh.1.98 million.

What this practically means

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Executive summary

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The applicant, employed by the respondent as a turnman from 4 February 2020, sustained injuries in a workplace accident on 18 October 2023. The Director of Occupational Safety and Health Services assessed compensation at Ksh.1,981,303.20 by DOSH/WIBA 4 dated 22 August 2024. The respondent, through its insurer Fidelity Insurance Company Limited, did not pay and instead opposed the applicant's application dated 25 November 2024 seeking adoption of the assessment as a court order, a decree for the assessed sum, and Ksh.200,000 in costs. The respondent argued that under Gazette Notice No.6024 of 2018 the ELRC lacked jurisdiction given the applicant's salary of about Ksh.25,400 per month, and that the claim was time-barred under Section 90 of the Employment Act. The court framed three issues: jurisdiction, limitation, and whether the orders sought should issue. It held that original jurisdiction over employment and labour disputes rests with the ELRC under Article 162(2)(a) and that the Chief Justice's designation of magistrates does not override that jurisdiction; that a Director's award, absent objection or appeal, may be enforced in this court; and that the governing timeline is the 90 days for settlement under Section 26(4) of the WIBA, not Section 90 of the Employment Act. The Ndende authority relied on by the respondent was distinguished. Allowing the application, the court ordered payment of Ksh.1,981,303.20 within 30 days, failing which costs as taxed plus interest at court rates would accrue. The claimed Ksh.200,000 in costs was not granted as a fixed sum.

Key legal issues

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01

Jurisdiction in light of Gazette Notice No.6024 of 2018

Holding

The ELRC has jurisdiction; the Gazette Notice designating magistrates does not defeat the court's original jurisdiction, and WIBA enforcement applications lie before this court.

Reasoning

The Chief Justice, under Section 29 of the Employment and Labour Relations Court Act, designated Senior Resident Magistrates and above to hear employment disputes to enhance access to justice. However, original jurisdiction rests with the ELRC under Article 162(2)(a) and the ELRC Act. An award by the Director resolves an employment claim, and where no objection or appeal is lodged under the WIBA, the injured employee may enforce the Director's award in this court.

p. 3
02

Whether the application is time-barred under Section 90 of the Employment Act

Holding

The application is not time-barred; the applicable timeline is the 90 days under Section 26(4) of the WIBA from issuance of the award, and these proceedings were filed without delay.

Reasoning

The Director's award was issued on 22 August 2024 and the respondent was notified immediately but has not effected payment. Section 90 of the Employment Act does not govern enforcement of a DOSH/WIBA 4 award; the WIBA gives the employer 90 days to settle. The Ndende case relied on by the respondent was distinguishable because the applicant there was silent on the date the employer received the Director's decision, and the 2022 application enforced a 2016 award.

p. 4
03

Whether the orders sought should be issued

Holding

The application was allowed and the respondent ordered to pay the assessed compensation of Ksh.1,981,303.20 within 30 days.

Reasoning

The respondent's employment of the applicant and the work injury are admitted. The Director assessed compensation at Ksh.1,981,303.20, which the respondent has not challenged by objection or appeal and is due and payable. The WIBA intends to compensate injured employees, and where payment is not made within the statutory timeline, enforcement proceedings are proper.

p. 4

Legal principles established

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  • The ELRC retains original jurisdiction over employment and labour relations disputes under Article 162(2)(a); the Chief Justice's designation of magistrates does not override that jurisdiction.
  • This court has jurisdiction to hear enforcement applications arising from awards of the Director under the WIBA.
  • Under Section 26(4) of the WIBA, an employer or insurer must settle a compensation claim lodged by the Director within ninety days where there are no objections or appeals.

Court orders

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  1. 1.The application dated 25 November 2024 is allowed
  2. 2.The respondent shall pay the applicant Ksh.1,981,303.20 in terms of DOSH/WIBA 4 dated 22 August 2024
  3. 3.Payment to be made within 30 days, after which the same shall accrue costs as assessed by the court plus interests at court rates

Authorities

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Legislation

  • Work Injury Benefits ActSections 10(1) and (2), 16, 26(4) and (6)
  • Employment and Labour Relations Court Act, 2011Sections 12(1)(a), 29
  • Employment ActSections 87, 90
  • Magistrates Court ActSection 29(3)(a)
  • Constitution of KenyaArticle 162(2)(a)
  • Gazette Notice No.6024 of 2018Designation of magistrates for employment disputes

Cases cited (4)

  • Elijah Kisyanga Ndende v Manager Zakhem International Construction Ltd
    [2022] KEELRC 383 (KLR)
  • Muriuki & another (Suing as the legal representatives of Patrick Kibiru Muriithi) v Isinya Roses Limited
    [2023] KEELRC 788 (KLR)
  • Law Society of Kenya v Attorney General & COTU
    [2019] eKLR
  • Bornface Indolo Luciva v Prime Quantifiers Construction Company Limited
    (2021) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act

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, "Nduwa v Bash Hauliers Limited (Miscellaneous Application E126 of 2024) [2025] KEELRC 321 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/321/eng@2025-02-06

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