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ELRCPartially AllowedCause No E086 of 2024· [2025] KEELRC 616 (KLR)

Mwangata v Shyam General Merchants Ltd (Cause E086 of 2024) [2025] KEELRC 616 (KLR)

Employment and Labour Relations Court
16 January 2025
OKOcharo Kebira
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can enforce workplace injury awards made by the DOSH Director, converting an unpaid Kshs 804,333 award into a court judgment.

What this practically means

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Executive summary

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The applicant, a former concrete worker at the respondent's Amani Apartment construction site in Mombasa, moved the court by notice of motion dated August 19, 2024 seeking adoption as a judgment of the court of an award of Kshs 804,333.33 made on November 30, 2023 by the Director of Occupational Safety and Health Services, Mombasa, following assessment of 60% permanent incapacity from a workplace accident, together with interest and costs. The respondent, through a replying affidavit sworn by the Legal Officer of its insurer, Intra Africa Assurance Company Limited, opposed the application, contending that the court lacked jurisdiction (citing Peter Mutua Kaloki v China State Construction), that the application was forum shopping following withdrawal of a miscellaneous application at the magistrates' court, that it was never notified of the award, and that its late objection and a secondary medical report showing 25% incapacity should have been considered. The court found the replying affidavit sworn by a stranger to the proceedings. It held that although WIBA is silent on enforcement of the Director's awards, the ELRC has jurisdiction under Article 162 of the Constitution, section 12 of the ELRC Act and rule 69 of the 2024 Procedure Rules to issue facilitative enforcement orders; access to justice and fair labour practices demand no less. Relying on Elijah Kisyanga Ndende, Samson Chweya Mwandabole and Joash Shisia Cheto, it further held that absent a timely objection under section 51 or appeal under section 52 of WIBA, the court cannot examine the merits of the award. The respondent's objection had been rejected as out of time and no appeal was lodged. The motion was allowed with costs; interest was awarded at court rates from the date of the award but as simple, not compounded, interest.

Key legal issues

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01

Whether the ELRC has jurisdiction to adopt and enforce the Director of Occupational Safety and Health Services' award under WIBA

Holding

The court has jurisdiction; WIBA's silence on enforcement does not deprive injured employees of a remedy, and a purposive reading of rule 69 of the 2024 Procedure Rules confirms the court's power to adopt the Director's award as its judgment.

Reasoning

The court acknowledged the lacuna in WIBA and the split of judicial opinion, but declined to follow the contrary view in Peter Mutua Kaloki. Reading WIBA with Article 162, section 12 of the ELRC Act and rule 69 of the 2024 Rules, and invoking constitutional values of social justice, access to justice and fair labour practices, it held that facilitative enforcement orders must issue so that employers cannot frustrate awards simply because the Legislature has not provided an enforcement mechanism.

p. 7
02

Whether the court may examine the merits of the Director's award in enforcement proceedings

Holding

No; absent an appeal under section 52 of WIBA, the court's authority is limited to enforcement and cannot revisit the merits or the process leading to the award.

Reasoning

The respondent's grounds (non-notification, alleged irregular assessment, failure to incorporate a later medical report, late objection) were merit-based challenges proper only in an appeal under section 52 or judicial review. The respondent failed to object within 60 days or appeal within 30 days of the Director's reply, so the award stood unchallenged and enforceable. The replying affidavit was also sworn by the insurer's Legal Officer, a stranger to the proceedings.

p. 8
03

Entitlement to the orders sought on adoption of the award

Holding

Having demonstrated the existence of the award, that it was unassailed, and that it remains unpaid, the applicant was entitled to adoption of the award as judgment with simple interest and costs.

Reasoning

The applicant showed the Director's assessment of 60% permanent incapacity and award of Kshs 804,333.33 on November 30, 2023; the respondent's objection was lodged out of time and rejected on July 31, 2024, and no appeal followed. The respondent never settled the award. The court therefore allowed the motion but limited interest to simple interest at court rates from the date of the award.

p. 9

Legal principles established

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  • The ELRC has jurisdiction, under Article 162 of the Constitution read with section 12 of the ELRC Act and rule 69 of the ELRC (Procedure) Rules, 2024, to issue facilitative orders adopting and enabling enforcement of the Director's WIBA award notwithstanding the absence of an enforcement mechanism in the Act.
  • Absent an objection under section 51 or an appeal under section 52 of WIBA within the statutory periods, enforcement of the Director's award by the court matures, and the court cannot examine the merits of the award.

Court orders

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  1. 1.The Director of Occupational Safety and Health Services' award/assessment of November 30, 2023 (Kshs 804,333.33) adopted as judgment of the court
  2. 2.Decree to issue for the sum of Kshs 804,333.33
  3. 3.Interest on the awarded sum at court rates from the date of the Director's award until full payment, as simple interest (not compounded)
  4. 4.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Work Injury Benefits Actsections 10(1), 19(2), 51, 52, 21
  • Constitution of Kenya, 2010articles 10, 27(1) & (2), 41(1), 48, 162
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2024rule 69

Cases cited (4)

  • Peter Mutua Kaloki v China State Construction & Engineering Corporation [Kenya] & another
    [2022] eKLR
  • Elijah Kisyanga Ndende v Manager Zahkem Internation Construction Ltd
    [2022] eKLR
  • Samson Chweya Mwandabole v Protective Custody Ltd
    [2021] eKLR
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
Jurisdiction invoked
Article 162 of the Constitution read with section 12 of the Employment and Labour Relations Court Act and rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Mwangata v Shyam General Merchants Ltd (Cause E086 of 2024) [2025] KEELRC 616 (KLR)", Case Analysis (2025). Cause No E086 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/616/eng@2025-01-16

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