Kayvee Construction Limited v Kodoni & another (Employment and Labour Relations Appeal E192 of 2024) [2025] KEELRC 2345 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the DOSH overlooked the Appellant's objection
- 2.Whether DOSH erred in the assessment of the injuries to arrive at excessive award
Key legal issues
#Whether the Director overlooked the Appellant's objection
The Director did not overlook the objection; he replied within 14 days, granted the relief sought and referred the injured employee to the WIEC Board for re-examination, thereby complying with section 51 of WIBA.
The appellant's objection of 18th April 2024 was itself not placed on the record, but the Director's letter of 23rd April 2024 responded to it within the statutory 14 days, set out responses, granted the request for re-examination and referred the employee to the Work Injury Evaluation Clinic Board. The Director indicated that upon receipt of the Board's medical report an informed determination would be communicated. This fully satisfied section 51 WIBA.
Whether DOSH erred in assessing the injuries to arrive at an excessive award
The enhancement from 25% to 55% was lawful: it rested on the findings of a three-doctor WIEC medical board which itemised each injury under the First Schedule, and the Director applied the section 30 formula correctly.
The initial 25% assessment came from one doctor at Avenue Healthcare. After the appellant's objection, a WIEC Board of three doctors examined the employee and itemised injuries to the thumb, index, middle, ring and little fingers and wrist, totalling 55%. The court, applying Kiruga v Kiruga, cannot substitute its own medical opinion for that of the board. The compensation of Kshs 897,600 was correctly computed as monthly earnings x 96 months x 55% under section 30 WIBA. Common law damages authorities were held irrelevant to WIBA awards.
Legal principles established
#- An appellate court cannot substitute its own finding for that of the decision-maker unless there is no evidence to support the finding or the decision-maker is plainly wrong
- Common law personal injury damages authorities are not relevant to WIBA awards, which are computed under the statutory formula in section 30
- Where an employer seeks re-examination and the WIEC medical board assesses a higher disablement, the court will find no fault in the enhancement
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- 2.30 days stay of execution granted
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Director of Occupational Safety and Health Services
- WIBA 11040/2024
- Jurisdiction invoked
- Section 51(2) of the Work Injury Benefits Act 2007 - appeal to the Industrial Court against the Director's decision
Relief refused
#Quashing, vacating, reviewing and/or setting aside of the Director's decision of 11th June 2024 enhancing permanent disablement from 25% to 55%
The Director complied with section 51 WIBA on the objection and the enhancement was supported by the WIEC medical board's findings; the court found the award lawful and had no basis to interfere
Costs
Appeal dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot the appeal is dismissed with costs to the 1st respondent.
30 days stay of execution granted.
The court finds that the Director complied with the law under section 51 of WIBA on the said objection.
An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong.
The court authorities cited by the appellant are based on common law. DOSH is guided by WIBA which provides for a formula under section 30 on how to compute the damages. The said authorities are thus not relevant for WIBA awards.
Issues in the judgment
#The judgment mislabels the WIBA objection provision: it introduces 'Section 51 of WIBA provides for objection as follows' but then quotes the text of '52. Director's reply'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayvee Construction Limited v Kodoni & another (Employment and Labour Relations Appeal E192 of 2024) [2025] KEELRC 2345 (KLR)", Case Analysis (2025). WIBA 11040/2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2345/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.