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ELRCOtherMombasa ELRC Misc. Application (application dated 11 November 2024)· [2025] KEELRC 752 (KLR)

Kassim v Kenya Ports Authority (Miscellaneous Application E117 of 2024) [2025] KEELRC 752 (KLR)

Employment and Labour Relations Court
6 March 2025
1,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, a Docker employed by the respondent, sustained a work injury on 20 September 2022. The Director of Occupational Safety and Health Services, Mombasa assessed 10% incapacity and on 13 June 2023 awarded him Ksh.1,216,309.50, with payment due within 90 days. The respondent did not object or appeal. Instead, it referred the applicant to a second doctor who assessed 3% incapacity, reducing the award to about Ksh.436,433, paid through a discharge voucher executed on 24 January 2024 via Jubilee Allianz Insurance. The applicant applied on 11 November 2024 for the Director's award to be adopted as judgment with a decree and compounded interest, arguing the unilateral review was contrary to WIBA. The respondent objected on jurisdiction, limitation under Section 90 of the Employment Act, and abuse of process, noting an earlier misc. application (E110 of 2024) that was withdrawn. The court held it retains original jurisdiction over work injury claims notwithstanding Legal Notice No.6024 of 2018, and that a work injury is not a continuing injury; time runs from the Director's award, and the respondent's settlement was an admission of liability defeating the limitation defence. However, because the second assessment was undertaken outside the Director's mandate, the process must be completed by the Director confirming the payment. The court declined to adopt the award as sought, directed the respondent to submit the second assessment to the Director for review, adoption and confirmation, left the applicant at liberty to move the court on any matters arising, and ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over work injury claims

Holding

The court has original jurisdiction to hear the application; Legal Notice No.6024 only vested jurisdiction in magistrates' courts for access to justice and cannot remove the constitutional mandate of the ELRC.

Reasoning

Article 162(2)(a) gives the court original and primary duty over employment and labour relations. Legal Notice No.6024 of 10 June 2018 divested magistrates' courts to handle claims of persons earning below Ksh.80,000, but such jurisdiction cannot be applied to remove the constitutional mandate of the ELRC. Prior decisions of the court affirm that work injury claims fall within the court's original jurisdiction.

p. 3
02

Whether the claim is statute-barred under the Employment Act

Holding

A work injury arises from a single act and is not a continuing injury; the right accrues from the Director's award. Since the respondent settled the claim on 24 January 2024, the limitation defence fails, the settlement being an admission of liability.

Reasoning

Continuing injuries accrue daily, weekly or monthly and must be claimed within 12 months of cessation. A work injury is a single act: the report, assessment and award by the Director give rise to the right. The applicant filed within time from the award. Moreover, the respondent's settlement of Ksh.436,433 on 24 January 2024 was an admission of liability, though the applicant also bears blame for executing the discharge voucher without ensuring payment evidence.

p. 4
03

Validity of the employer's unilateral second assessment and settlement

Holding

The second assessment reducing incapacity from 10% to 3% was not conducted with the Director and was outside statutory timelines; it must be submitted to the Director for review, adoption and confirmation of the payment.

Reasoning

The Director's office is the statutory repository of work injury matters, empowered to investigate, assess and award. Upon an award, the employer must pay within 90 days or object, including seeking review. A review conducted outside the Director's mandate, even with payment and a discharge voucher, requires the Director's confirmation; otherwise the purpose of WIBA is lost through employer circumvention of due process.

p. 3

Legal principles established

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  • The ELRC retains original jurisdiction over work injury claims notwithstanding Legal Notice No.6024 of 2018 allocating claims of persons earning below Ksh.80,000 to the magistrates' courts
  • A work injury claim is not a continuing injury; time under Section 89 of the Employment Act runs from the date of the Director's award, and settlement of the claim is an admission of liability that bars a limitation defence
  • A review of the Director's award conducted outside the Director's office and mandate must be completed by the Director confirming the payment; otherwise the purpose of WIBA is defeated by employer circumvention

Court orders

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  1. 1.The application dated 11 November 2024 is addressed without adoption of the Director's award
  2. 2.The respondent shall submit the second assessment to the Director for review, adoption, and confirmation of the payment made to the applicant in settlement
  3. 3.Each party bears its costs
  4. 4.Where any matters arise based on the Director's review, the applicant is at liberty to move the court
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Section 19(2) of the Work Injury Benefits Act; Rule 62 of the ELRC (Procedure) Rules; Order 40 rule 51

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, "Kassim v Kenya Ports Authority (Miscellaneous Application E117 of 2024) [2025] KEELRC 752 (KLR)", Case Analysis (2025). Mombasa ELRC Misc. Application (application dated 11 November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/752/eng@2025-03-06

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