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ELRCStruck OutNot stated in judgment· [2025] KEELRC 2269 (KLR)

Simon v Teachers Service Commission (Miscellaneous Application E006 of 2025) [2025] KEELRC 2269 (KLR)

Employment and Labour Relations Court
31 July 2025
OMONESMUS N MAKAU
898 words in judgment
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The bottom line

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A Kenyan court refused to enforce an original workplace injury award because a successful objection had replaced it with a lower revised assessment.

What this practically means

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Executive summary

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The applicant, injured in a traffic accident on 14th November 2016 in the course of employment with the respondent, moved the ELRC at Nyeri by notice of motion dated 13th March 2025 seeking adoption as a judgment of the DOSH assessment of 17th March 2022 which fixed her compensation at Kshs.7,665,641.74 based on 80 percent permanent disablement, plus interest and costs. She averred that only Kshs.1,800,000 had been paid. The respondent admitted the injury and the original assessment but stated it lodged an objection under section 51 of WIBA; DOSH ordered a re-evaluation clinic, the degree of incapacity was reduced from 80 to 60 percent and the award to Kshs.4,834,022.40, of which Kshs.1,800,000 was paid on 24th May 2024, leaving Kshs.3,034,022.40 outstanding with payment vouchers awaiting exchequer funds. In a supplementary affidavit the applicant denied involvement in the review and asked the court to disregard it. The court framed a single issue: whether to adopt the original 17th March 2022 assessment. It found the assessment had been successfully challenged under section 51 and was no longer in existence, so it could not be adopted or enforced. The court also held it could not allow the motion absent amendment to reflect the existing assessment of 26th June 2023. It struck out the motion with no order as to costs, noting the respondent had not fully settled the new award, and granted the applicant liberty to move the court appropriately.

Key legal issues

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01

Whether the original DOSH assessment of 17th March 2022 could be adopted as a judgment

Holding

No. The assessment was successfully challenged under section 51 of WIBA through an objection, a re-evaluation clinic was ordered and the award was reduced to Kshs.4,834,022.40; the original assessment no longer exists in law.

Reasoning

Section 51(1) of WIBA permits any person aggrieved by a decision of the Director to lodge an objection within sixty days. The respondent lodged such an objection, DOSH ordered a re-evaluation clinic, and the degree of permanent incapacity was reduced from 80 to 60 percent with compensation reduced accordingly. The court held it could not disregard the revised assessment merely because the applicant claimed to be a stranger to the review, sympathising only if procedure was not followed. The applicant could not enforce a non-existent assessment without amending her motion.

p. 2

Legal principles established

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  • Where an original DOSH assessment has been successfully objected to and revised under section 51 of WIBA, the superseded assessment cannot be adopted and enforced as a judgment of the court
  • A motion founded on a superseded assessment cannot be allowed without amendment to reflect the existing assessment

Court orders

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  1. 1.Notice of motion dated 13th March 2025 struck out with no order as to costs
  2. 2.Liberty granted to the applicant to move the court appropriately
Jurisdiction invoked
Employment and Labour Relations Court procedural jurisdiction to adopt DOSH awards under the Work Injury Benefits Act (ELRC Procedure Rules invoked in delivery of ruling)

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, "Simon v Teachers Service Commission (Miscellaneous Application E006 of 2025) [2025] KEELRC 2269 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2269/eng@2025-07-31

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