Kemboi v Lomolo (1961) Limited (Cause E027 of 2023) [2025] KEELRC 669 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear workplace injury claims until the DOSH process under WIBA is completed first.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on jurisdiction is merited
The preliminary objection is allowed; the court will not proceed with the claim, but grants the claimant leave to pursue the claim with the Director under WIBA.
The court accepted that WIBA claims lie first with the Director of Occupational Safety and Health Services, the ELRC's jurisdiction being appellate or supervisory. The claimant had reported the injury to DOSH, which required the respondent to file DOSH forms; the respondent refused to co-operate, with Majani Mingi Sisal Estate indicating the injury was not work-related. The court noted the claimant may report directly to the Director under section 22(5) and, balancing justice, declined to dismiss the claim outright but declined to proceed, directing the claimant back to DOSH.
Whether the claimant complied with the WIBA pre-court referral procedure
The claimant had done his part by reporting to the Director; it was the Respondent who failed to comply with DOSH's request for forms.
DOSH communicated to the Respondent by letter dated 11th March 2021, and the Respondent did not respond or file the requisite DOSH forms. The court criticised the Respondent for raising lack of reporting as a ground while itself being non-compliant, calling it hypocritical. The objection was nonetheless treated as a point of law on jurisdiction, which the court found it lacks over an unresolved WIBA claim.
Legal principles established
#- An employee may report an occupational accident to the Director at any stage under section 22(5) of the Work Injury Benefits Act.
- A preliminary objection must be a pure point of law, per Mukisa Biscuit Manufactures Ltd v Westend Distributors.
Court orders
#- 1.The court will not proceed with the claim before it; the claimant is at liberty to pursue his assessment from the Director of Occupational Safety and Health (DOSH)
- 2.The costs of the preliminary objection application to be paid to the claimant
- Jurisdiction invoked
- Section 12(a) of the Employment and Labour Relations Court Act; Article 162(2) of the Constitution (court acting in first-instance jurisdiction over employment and labour relations matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemboi v Lomolo (1961) Limited (Cause E027 of 2023) [2025] KEELRC 669 (KLR)", Case Analysis (2025). Memorandum of Claim dated 21st June, 2023 (ELRC cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/669/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.