Kamau v Kenya Accreditation Services (KENAS) (Miscellaneous Application E347 of 2024) [2025] KEELRC 1961 (KLR)
The bottom line
#A Kenyan employer couldn't challenge a workplace injury award late—the court adopted Ksh. 6 million as judgment because the employer never appealed in time.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to adopt DOSH awards
The court has jurisdiction; the gap in WIBA is filled by Article 162 of the Constitution, section 12 of the ELRC Act and section 87 of the Employment Act, and the Court of Appeal has affirmed this jurisdiction
The Act lacks an enforcement procedure for the Director's awards. The court invoked Article 162 and section 12 of the ELRC Act conferring unlimited original jurisdiction over employment disputes, and section 87 of the Employment Act entitling parties to institute proceedings over any dispute as to rights or liabilities. The Court of Appeal in Charles v Cheto recently affirmed this jurisdiction, and the court subscribed to the school of thought supporting such applications.
Whether the Respondent could challenge the merits of the award at the adoption stage
No; having failed to seek review or appeal under sections 51 and 52 of WIBA, the Respondent cannot challenge the award on the merits at adoption; judicial review must be sought before the adoption process
The objection that the accident occurred on a Saturday outside duty should have been raised before the Director or through review and appeal under sections 51 and 52 of WIBA. There was no evidence the Respondent took either step. Authorities establish that a party who fails to challenge an award cannot contest its merits at the adoption stage; the remaining option, judicial review, must precede adoption, and none was filed.
Whether an award capable of adoption was made
Yes; although the DOSH 4 form was not attached to the supporting affidavit, it was introduced through the further affidavit
The Respondent's submission, not anchored on the replying affidavit, was that no award existed because the DOSH 4 form was not attached to the supporting affidavit. The court found the form had been introduced through the further affidavit and was satisfied the Director made the award dated 20th September 2023 assessing compensation at Ksh. 6,040,746.52.
Whether the Respondent's claim of ignorance of the award was credible
No; email correspondence between the Respondent's officer and the Applicant's lawyers showed the DOSH assessment form was exchanged, undermining the claim of ignorance
Despite the Respondent's officer swearing it was unaware of the award, correspondence of 25th and 27th November 2024 showed the DOSH assessment form was exchanged with the Applicant's lawyers. The Applicant also showed the Respondent had reported the accident via DOSH 1 form and forwarded claim details to its insurers, making the feigned ignorance misleading.
Legal principles established
#- A party who fails to challenge a Director's award through review or appeal under sections 51 and 52 of the Work Injury Benefits Act cannot challenge it on the merits at the adoption stage
- The ELRC has jurisdiction to adopt and enforce awards of the Director notwithstanding the absence of an enforcement mechanism in the Work Injury Benefits Act
- An objection that an accident occurred outside the course of duty should be raised with the Director when the award is being considered, or via review and appeal
Court orders
#- 1.The award of the Director of Occupational Health and Safety dated 20th September 2023 in the sum of Ksh. 6,040,746.52 adopted as the judgment of the court
- 2.Any other order not granted is deemed to have been declined
- Jurisdiction invoked
- Article 162 of the Constitution read together with section 12 of the Employment and Labour Relations Court Act and section 87 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kenya Accreditation Services (KENAS) (Miscellaneous Application E347 of 2024) [2025] KEELRC 1961 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1961/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.