Intercontinental Consultant and Technocrats v Matheka & another (Employment and Labour Relations Judicial Review E039 of 2024) [2025] KEELRC 876 (KLR)
The bottom line
#The Employment Court struck out an employer's bid to cancel a Kshs 2.5 million work injury award because the employer waited too long and used the wrong court process.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
Yes - the matter had been decided by Ndolo J. in her Ruling dated 14/11/2024 in Misc. Application No. 173 of 2024 between the same parties and concerning the same award
The court found that Ndolo J. had already determined an application by the 1st Respondent seeking payment of the same Kshs. 2,500,615.00 award by the Director of Occupational Safety and Health Services. The parties were the same, save that the roles were reversed, and the subject matter was identical. Ndolo J. held the ELRC lacked jurisdiction under WIBA, and this application by the employer was conclusively pre-empted by that decision. The court noted it was not bound by that decision but found the present application pre-empted in any event.
Whether the application is statute-barred under sections 51 and 52(2) of WIBA
Yes - the Applicant failed to lodge an objection with the Director within sixty days of the award and to appeal within thirty days
Section 51(1) of WIBA requires any person aggrieved by a decision of the Director to lodge an objection with the Director within sixty days, and section 52(2) allows an objector thirty days from the Director's reply to appeal to the Industrial Court. The award was made on 22nd November 2021 but the application was filed on 25th June 2024, more than seven months (indeed years) later. The court held this preliminary objection was good and upheld it.
Whether the court has jurisdiction to entertain the application
No - the ELRC exercises appellate jurisdiction under WIBA and no more, and the Applicant had not exhausted the statutory dispute mechanism
Relying on Musimbi v Great Yaduo Industry Limited and Seme v Sino Hydro Corporation Engineering Bureau (K) Ltd, the court noted the ELRC cannot adopt and confirm the Director's award and then sit as an appeal court over it. The Applicant's remedy lay in the statutory objection and appeal process under sections 51 and 52 of WIBA, which was not followed within the prescribed time. Jurisdiction being everything, the court could not entertain the application.
Legal principles established
#- The ELRC exercises appellate jurisdiction under the Work Injury Benefits Act and no more; a party aggrieved by the Director's award must lodge an objection with the Director within sixty days under section 51 of WIBA and appeal to the Industrial Court within thirty days under section 52(2).
- A judicial review application in respect of the same award, between the same parties, that was conclusively determined by a prior ruling is res judicata.
Court orders
#- 1.The Notice of Motion dated 23rd July 2024 is struck out, firstly for being res judicata and secondly for lack of jurisdiction
- 2.The Applicant to meet the costs of the application
- Jurisdiction invoked
- Judicial review jurisdiction of the ELRC; applicant challenged the Director of Occupational Safety and Health Services' award under the Work Injury Benefits Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Intercontinental Consultant and Technocrats v Matheka & another (Employment and Labour Relations Judicial Review E039 of 2024) [2025] KEELRC 876 (KLR)", Case Analysis (2025). Judicial Review application dated 23rd July 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/876/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.