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ELRCDismissedNot stated in judgment· [2025] KEELRC 1917 (KLR)

Kisenge v China Communications Construction Company Limited (Miscellaneous Application E214 of 2023) [2025] KEELRC 1917 (KLR)

Employment and Labour Relations Court
25 June 2025
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to enforce a work injury award of Kshs. 432,105 because DOSH later revised the worker's incapacity to zero percent.

What this practically means

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Executive summary

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The Applicant, a steel farm worker injured on 6th April 2019, moved the Court by an application dated 13th October 2023 seeking adoption of a DOSH award of Kshs. 432,105/= (based on 20% permanent incapacity) as the judgment of the Court, together with a decree for execution and costs. DOSH's appointed doctors had subsequently revised the permanent incapacity to 0%, and the Respondent opposed the application, arguing the Court lacked jurisdiction to enforce a nullified award, that the Applicant's claim was deceptive for concealing the revised assessment, and that contributory negligence and failure of proof under Sections 107-109 of the Evidence Act defeated the claim. The Court framed four issues, including entitlement to the award, jurisdiction, the effect of the revision, and merit. It accepted that an employer must challenge a DOSH assessment within 60 days under Sections 51 and 52 of WIBA, and that the Respondent did not do so. However, it held that the subsequent revision by DOSH, the statutory body with the exclusive mandate to assess and revise compensation, could not be ignored, and that enforcing a nullified award would undermine the WIBA framework. The authorities cited by the Applicant were distinguished as not addressing awards invalidated by the statutory authority. The Applicant's non-disclosure of the revised assessment also damaged his credibility. The Court dismissed the application and ordered each party to bear their own costs, dated 25th June 2025, per D. K. Njagi Marete, Judge.

Key legal issues

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01

Whether the subsequent revision of permanent incapacity from 20% to 0% invalidates the initial DOSH award

Holding

Yes - the revised assessment by DOSH is the authoritative determination and the initial award cannot stand.

Reasoning

Although the Respondent's failure to object within the statutory period initially solidified the award, DOSH is the statutory body mandated to assess such claims and its subsequent revision cannot be ignored. Finality of administrative decisions and the statutory framework of WIBA vest DOSH with the exclusive mandate to assess and revise compensation, so the revised 0% assessment supersedes the initial award of Kshs. 432,105/=.

p. 3
02

Whether the Court has jurisdiction to adopt the DOSH Award as its judgment

Holding

No, in circumstances where the award itself has been invalidated by the statutory authority.

Reasoning

The authorities cited by the Applicant (Samson Chueya Muandabole and Elijah Kisyanga Ndende) affirm the Court's inherent jurisdiction to enforce DOSH awards where employers refuse to pay, but do not address situations where the award itself has been invalidated by the statutory authority. The Respondent's jurisdictional objection was found persuasive in such circumstances.

p. 3
03

Whether the Respondent proved contributory negligence

Holding

The submission was plausible but insufficiently substantiated; the Respondent did not prove contributory negligence to a balance of probabilities.

Reasoning

While workplace safety is a shared responsibility, the Respondent did not provide concrete evidence proving that the Applicant's actions directly caused the injury. The evidence fell short of the balance-of-probabilities standard. The finding did not affect the outcome, which turned on the revised DOSH assessment.

p. 3

Legal principles established

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  • An employer dissatisfied with a DOSH assessment must challenge it within 60 days under Sections 51 and 52 of WIBA, failing which the decision becomes final; however, a subsequent revision of the assessment by DOSH supersedes the initial award.
  • Judicial intervention to enforce an award nullified by the statutory authority would undermine WIBA, which vests DOSH with the exclusive mandate to assess and revise compensation.

Court orders

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  1. 1.The application dated 13th October 2023 seeking adoption of the DOSH Award of Kshs. 432,105/= as the judgment of the Court is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Work Injury Benefits Act, 2007 (WIBA)Sections 10, 21, 22
  • Work Injury Benefits Act, 2007 (WIBA)Sections 51, 52
  • Evidence ActSections 107-109

Cases cited (6)

  • Samson Chueya Muandabole v Protective Custody Limited
    [2021] eKLR
  • Elijah Kisyanga Ndende v Manager Zahkem International Construction Ltd
    [2022] eKLR
  • Reuben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya
    [2017] KECA 274 (KLR)
  • Staipack Industries v James Mbithi Munyao
    [2005] KLR
  • South Nyanza Sugar Co. Ltd v Enock Nyandoro Magaka
    [2020] eKLR
  • Makomboki Tea Factory Limited v Mwaura
    [2024] KEELRC 2145 (KLR)
Jurisdiction invoked
Work Injury Benefits Act, 2007; inherent jurisdiction of the Employment and Labour Relations Court to adopt DOSH awards

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, "Kisenge v China Communications Construction Company Limited (Miscellaneous Application E214 of 2023) [2025] KEELRC 1917 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1917/eng@2025-06-25

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