Ogol & another v Badar Hardware Limited & another (Cause 116 of 2023) [2025] KEELRC 619 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can enforce workplace injury awards, but dismissed this bid because it bypassed the full hearing process.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to enforce Director of Occupational Safety and Health Services awards under WIBA
The Court has jurisdiction to enforce the Director's awards, relying on Article 10 values, section 12 of the ELRC Act, rule 69 of the ELRC Rules and the maxim that equity will not suffer a wrong without a remedy, but not over contentious matters requiring original jurisdiction and taking of evidence
The court acknowledged the WIBA is deficient on enforcement of the Director's awards and that two schools of thought exist. It declined to follow the decision urged against it, holding that employers cannot defy awards merely because the Legislature failed to provide an enforcement mechanism, as that would embolden defiance, breach the rule of law and stifle access to justice. It noted rule 69 of the court's Rules now empowers adoption of such awards.
Whether the 2nd Respondent (Insurer) is properly enjoined
The preliminary objection was declined because it was not a pure point of law; the question of misjoinder requires interrogation of facts and should be raised by a separate notice of motion
The 2nd Respondent argued the dispute with it was commercial and that the Court lacked jurisdiction over it, and that there was misjoinder. The court held that determining whether the objection was well founded required examining facts, so it failed the Mukisa Biscuit test and was better raised in a striking-out application.
Whether the Claimants were entitled to the orders sought
The application was dismissed as it sought the same relief as the main claim without being a summary judgment application
The court found the application duplicated the principal relief in the Statement of Claim and that granting it would conclusively determine the suit on affidavits at an interlocutory stage, engaging a foreign procedure unknown to the procedural rules or the law. The court was unwilling to sanction such a procedure.
Legal principles established
#- The ELRC has jurisdiction to enforce awards or decisions of the Director of Occupational Safety and Health Services under the WIBA, but not over contentious matters requiring the assumption of original jurisdiction and taking of evidence
- Judge-made law becomes imperative to fill the enforcement gap in the Work Injury Benefits Act so that injured workers and dependants are not denied remedies
- A relief identical to the principal relief in the Statement of Claim cannot be granted through an interlocutory application that is not for summary judgment
Court orders
#- 1.The Claimants'/Applicants' Notice of Motion application dated 3rd October 2023 is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act; rule 69 of the ELRC Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogol & another v Badar Hardware Limited & another (Cause 116 of 2023) [2025] KEELRC 619 (KLR)", Case Analysis (2025). Notice of Motion application dated 3rd October 2023 (in the suit herein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/619/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.