Hassen v Kithaka (Appeal E089 of 2025) [2025] KEELRC 2508 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court confirmed that magistrates can enforce workplace injury awards assessed by the Director of Occupational Safety when the amounts fall within their limits.
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 trial court has jurisdiction to adopt the assessment of the Director of Occupational Safety and Health Services as an order of the court.
- 2.Whether the appeal is merited.
Key legal issues
#Jurisdiction of the Magistrate's Court to adopt DOSH awards
The trial Magistrate had jurisdiction to adopt the DOSH assessment of Kshs. 299,520 as an order of the court, since the amount was within her pecuniary jurisdiction and the Court of Appeal in Cheto v Charles did not disturb the general principle that magistrates may enforce the Director's awards where pecuniary jurisdiction allows.
WIBA is silent on the procedure for enforcing the Director's award. The Court of Appeal in Cheto v Charles endorsed that the ELRC may be moved under Article 162(2) and Section 12 of the ELRC Act, noting a minority view that magistrates may adopt awards within their pecuniary jurisdiction. This Court found the Court of Appeal did not overrule that principle; the Magistrate applied a decision upheld on appeal and the award fell within her pecuniary limits.
Standard of appellate interference
Applying Mbogo v Shah, the appellate court will not interfere with the trial court's discretion unless satisfied the decision is clearly wrong.
The appeal attacked the Magistrate's ruling on the preliminary objection. Guided by Mbogo v Shah and Selle v Associated Motor Boat Co., the Court found the Magistrate neither misdirected herself nor acted on extraneous matters, and dismissed the appeal.
Legal principles established
#- Where pecuniary jurisdiction allows, a Magistrate's Court may adopt and enforce an award of the Director of Occupational Safety and Health Services, the enforcement procedure under WIBA being a lacuna.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong.
Court orders
#- 1.The Ruling and Order of the Hon. L. Ambasi (CM) delivered on 17th March, 2025 in MCELRC Miscellaneous Application number E002/2025 is upheld
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court (Nairobi, ELRC)
- MCELRC Miscellaneous Application E002/2025
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over decisions of subordinate courts in employment and labour relations matters (Article 162(2) Constitution; Employment and Labour Relations Court Act)
Relief refused
#Setting aside of the trial Magistrate's ruling of 17th March 2025
The Court was not satisfied that the Magistrate's decision was clearly wrong; she acted within her gazetted pecuniary jurisdiction.
Costs
Costs of the appeal awarded to the 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 Ruling and Order of the Hon. L. Ambasi (CM) delivered on 17th March, 2025 in MCELRC Miscellaneous Application number E002/2025 is upheld with costs of the appeal awarded to the respondent.
The court was of the considered opinion that the Court of Appeal in Cheta v Charles did not overrule the position that where pecuniary jurisdiction allows the Magistrate may enforce the award as established general principle under paragraph 52 of the appealed decision by Manani J.
The court has Jurisdiction under article 162(2) of the Constitution and Section 12 of Employment and Labour Relations Court Act. The trial magistrate however has not been extended Jurisdiction to award DOSH orders under the Chief Justice's Gazette Notice No. 6024 of 2018.
there is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement.
a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
Issues in the judgment
#Judgment contains multiple obvious typographical errors including 'yo' for 'to', 'Coversely', 'relied don', 'efiect', 'afirmed', 'ofiences', and the misnamed case 'Cheta v Charles' vs 'Cheto v Charles'/'Charles v Cheto'.
The judgment quotes the Court of Appeal's holdings at length but the excerpt is fragmented and internally unattributed between paragraphs 52 and 54 of the cited decision.
Paragraph numbering in the judgment is irregular (e.g. paragraphs 30 and 31 revert to describing the application as if new), and the trial court's ruling is described both as dismissing the preliminary objection AND allowing the Notice of Motion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassen v Kithaka (Appeal E089 of 2025) [2025] KEELRC 2508 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 26th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2508/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.