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ELRCDismissedNot stated in judgment

Obaki v Bhachu Industries Ltd & another (Miscellaneous Application E027 of 2024) [2025] KEELRC 711 (KLR)

Employment and Labour Relations Court
7 March 2025
BOByram Ongaya
789 words in judgment
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The bottom line

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Bhachu Industries lost its bid to overturn a Kshs.789,021 work injury award because it should have objected under WIBA, not sought review.

What this practically means

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Executive summary

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Bhachu Industries Ltd, the employer, applied by notice dated 19.11.2024 under Order 45 rule 1 of the Civil Procedure Rules for review and setting aside of the judgment of 25.10.2024 by which the court adopted as its judgment a DOSH award of Kshs.789,021.00 in favour of its employee, assessed under the Work Injury Benefits Act, 2007. The applicant contended that new information had emerged on 18.11.2024: that after the workplace injury of 31.08.2020 the employee was treated at Access Afya and a doctor completed a DOSH form assessing him at 0%, entitling him to no compensation; it alleged the adopted award rested on a second DOSH form obtained fraudulently and that the employee had committed perjury. The employee opposed, denying attendance at Access Afya, asserting the exhibited report was fake, and urging that the application was an abuse of process. The court noted the applicant admitted it did not oppose the adoption application; it failed to explain why it had not invoked the objection and appeal procedures under WIBA to challenge the DOSH award; and it failed to state when it became aware of the alleged new information, which was in its possession all along and discoverable with due diligence before adoption of the award. The court held such material belongs in WIBA objection proceedings. The application for review was dismissed with costs and the Deputy Registrar directed to return the file to the Machakos Sub-registry.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's application for review dated 19.11.2024 should be granted to set aside the judgment of 25.10.2024 adopting the DOSH award
  2. 2.Whether the alleged new information (the Access Afya medical report/DOSH form) justified review under Order 45 rule 1

Key legal issues

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01

Whether the alleged new information justified review of the judgment adopting the DOSH award

Holding

The review application fails; the alleged new information was in the applicant's possession, discoverable with due diligence before adoption of the award.

Reasoning

The applicant admitted it did not oppose the application dated 18.07.2024 to adopt the DOSH award. It did not explain failure to invoke WIBA objection and appeal procedures. It failed to state when it became aware of the alleged new information, which was already in its possession and could have been presented before adoption. Such material belongs in WIBA objection proceedings, not in a review of the adoption order.

p. 2
02

Fraud allegation regarding the second DOSH form

Holding

The applicant's allegations of a fraudulently obtained award and perjury were not a basis to grant review on the material before the court.

Reasoning

The 1st respondent denied attending Access Afya and asserted the exhibited medical report was fake, contending 0% assessment was impossible for severe permanent injuries. The court did not accept the review grounds, finding the applicant had not exercised due diligence and had alternative remedies under WIBA.

p. 2

Legal principles established

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  • A party who fails to invoke the objection and appeal procedures prescribed under WIBA to challenge a DOSH award cannot attack the adopted award through a review application.
  • Information in a party's possession that could with due diligence have been obtained and presented before judgment does not constitute new information for review; it is properly deployed in WIBA objection proceedings.

Court orders

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  1. 1.The application for review dated 19.11.2024 is dismissed with costs
  2. 2.The Deputy Registrar to return the Court file to the Machakos Sub-registry, forthwith

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act; Order 42 rule 6(3), Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Review and setting aside of the judgment entered on 25.10.2024 adopting the DOSH award of Kshs.789,021.00

The alleged new information was in the applicant's possession and could with due diligence have been used before adoption of the award; it belongs in WIBA objection proceedings, not review of the adoption order

p. 2

Costs of the application

Application dismissed with costs to the respondents

p. 2

Costs

Application dismissed with costs (costs provided for to the respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The alleged new information was all along in the possession of the applicant and could with due diligence have relied on it to object to the impugned award.
p. 2Review - new information and due diligence
it would properly be useful information in the objection proceedings under WIBA and not an application to adopt the award like in the instant proceedings.
p. 2Proper forum - WIBA objection proceedings
In conclusion, the application for review dated 19.11.2024 is hereby dismissed with costs, and, the Deputy Registrar to return the Court file to the Machakos Sub-registry, forthwith.
p. 2Final orders / disposition

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, "Obaki v Bhachu Industries Ltd & another (Miscellaneous Application E027 of 2024) [2025] KEELRC 711 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/711/eng@2025-03-07

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