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ELRCOtherNot stated in the judgment extract· [2025] KEELRC 1410 (KLR)

Kyalo v DPL Festive Limited & another (Miscellaneous Cause E034 of 2025) [2025] KEELRC 1410 (KLR)

Employment and Labour Relations Court
15 May 2025
RSRadido Stephen
692 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to enforce a Kshs 874,422 work injury assessment because the same officer issued two conflicting assessments, and summoned him to explain the discrepancy.

What this practically means

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Executive summary

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The applicant, Nzuva Kyalo, moved the Employment and Labour Relations Court by Motion dated 14 February 2025 seeking adoption as an order of the Court of an assessment by the Director of Occupational Health and Safety in Claim WIBA/NRB/08506/2023 of Kshs 874,422/-, together with a decree against the Respondents and costs. The claim arose from an injury sustained in the course of work on 18 February 2022. The applicant argued the Court had power to enforce the Director's award and that the Respondents had no lawful reason to withhold payment, citing three authorities. The Respondents filed two replying affidavits: APA Insurance Ltd denied any contractual or legal nexus with the applicant, while DPL Festive Ltd admitted the accident but asserted the initial assessment was Kshs 202,038/- for 0% permanent incapacity, that a later notification claimed Kshs 874,422/-, that a second medical opinion found 5% permanent disability, that an appeal to the Director was rejected on 7 October 2024, and that the documents and award were forgeries. The Respondents also contended the insurer had forwarded a settlement cheque of Kshs 364,665/- to the employer. Examining the file, the Court found two Demands for Payment of Work Injury Benefit assessed by the same officer, James Mithanga: one showing 0% disablement assessed at nil, the other dated 10 July 2024 showing 20% disablement assessed at Kshs 672,384/-. Unable to establish which demand was genuine, the Court declined to adopt the assessment and instead issued summons to James Mithanga, Director of Occupational Safety and Health, to appear on 26 May 2025 to explain the inconsistency. The Deputy Registrar was ordered to serve the Ruling and Summons. The application was thus not determined on its merits.

Key legal issues

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01

Enforceability of a WIBA compensation assessment by the Director of Occupational Safety and Health

Holding

The Court declined to adopt the assessment as a decree because two conflicting demands for payment had been issued by the same assessing officer, and the genuineness of either demand could not be established on the material before it.

Reasoning

The applicant sought adoption of an assessment of Kshs 874,422/- made on 10 July 2024. The Respondents asserted the documents and award were forgeries, that the first assessment was Kshs 202,038/- with 0% incapacity, and that an appeal to the Director had been rejected. On its own review of the two Demands for Payment, the Court found the first showed 0% permanent disablement with nil assessment while the second showed 20% disablement assessed at Kshs 672,384/-, both signed by the same officer, James Mithanga. Unable to determine which demand was genuine, the Court directed that the assessing officer appear to explain the inconsistency before any adoption.

p. 2
02

Liability of the insurer versus the employer for the WIBA award

Holding

This issue was not determined; the Respondents argued the 2nd Respondent was merely an insurer and any award enforceable only against the 1st Respondent employer, but the Court deferred determination pending the attendance of the Director.

Reasoning

The Respondents submitted that the 2nd Respondent was only an insurer which had forwarded a settlement cheque of Kshs 364,665/- to the employer, and that enforcement lay against the employer alone. The Court did not rule on this submission because it first had to resolve the genuineness of the conflicting assessments. The question remains open for determination after James Mithanga appears and explains the inconsistency between the two demands.

p. 2

Legal principles established

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    Court orders

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    1. 1.Summons issued to James Mithanga, Director, Occupational Safety and Health, to appear in Court to explain the inconsistency between the two demands
    2. 2.The Deputy Registrar to serve a copy of the Ruling and a Summons to Appear upon James Mithanga to appear in Court on 26 May 2025 at 9.00 am
    Jurisdiction invoked
    Inherent powers of the Employment and Labour Relations Court to issue summons and directions in a work injury benefit claim (WIBA) enforcement motion

    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, "Kyalo v DPL Festive Limited & another (Miscellaneous Cause E034 of 2025) [2025] KEELRC 1410 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1410/eng@2025-05-15

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