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ELRCAllowedNotice of Motion dated 22nd January 2025 (Employment and Labour Relations Court, Nairobi)· [2025] KEELRC 2701 (KLR)

Makau v Occidental Insurance Company Limited (Miscellaneous Application E013 of 2025) [2025] KEELRC 2701 (KLR)

Employment and Labour Relations Court
3 October 2025
SRStella Rutto
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employer failed to appeal a work injury award in time, so the court ordered it to pay over Kshs. 16.6 million with interest and costs.

What this practically means

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Executive summary

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The Applicant, a former Human Resources and Administration Manager with the Respondent, moved the Court by Notice of Motion dated 22nd January 2025 seeking adoption as judgment of an award of Kshs. 16,661,604 made on 5th September 2024 by the Director, Work Injury Benefits Administration, plus interest and costs. He sustained injuries in the course of employment on 20th October 2022; the Respondent's objection to the award was dismissed by the Director, who confirmed on 28th November 2024 that the process before him was exhausted, and no appeal was lodged within the 30-day window under Section 52(2) of the Work Injury Benefits Act. The Respondent filed a Preliminary Objection dated 28th April 2025 contending that the Applicant's injuries were self-inflicted (sustained while driving under the influence of alcohol and outside employment), rendering the Director's assessment null and void, and further that the Court lacked jurisdiction because Clause 11 of a Personal Accident Insurance Policy required negotiation, mediation or arbitration. The Court held that Sections 51 and 52 of WIBA establish the exclusive statutory dispute framework: having failed to appeal under Section 52(2), the Respondent could not litigate the merits of the award through a preliminary objection; to entertain it would be to exercise appellate jurisdiction absent a proper appeal. Following Mwangata v Shyam General Merchants Limited, the Court entered judgment for the Applicant in the sum of Kshs. 16,661,604.00, awarded interest at court rates from the date of decision until payment in full, and ordered the Respondent to bear the costs of the suit.

Key legal issues

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01

Jurisdiction to review the merits of a Director, WIBA award

Holding

The Court cannot question the award's validity where no appeal under Section 52(2) was filed; doing so would amount to exercising appellate jurisdiction without an appeal.

Reasoning

Sections 51 and 52 of WIBA provide the exclusive statutory scheme: an objection to the Director, then an appeal to the ELRC within 30 days. The Respondent's objection was dismissed by the Director and no appeal followed. Allegations that injuries were self-inflicted and outside employment go to the merits of the award and can only be ventilated on appeal.

p. 3
02

Whether the arbitration clause in the Personal Accident Insurance Policy ousts the Court's jurisdiction

Holding

Not sustained; the dispute resolution route prescribed by the WIBA statutory framework governs, and no appeal was filed under Section 52(2).

Reasoning

The Respondent contended that Clause 11 of a Personal Accident Insurance Policy required negotiation, mediation or arbitration. The Court held that the statutory framework under Sections 51 and 52 of WIBA addresses disputes over the Director's award, and the Respondent's failure to appeal under Section 52(2) left the award unchallenged and enforceable.

p. 2

Legal principles established

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  • Absent an appeal under Section 52(2) of the Work Injury Benefits Act, the ELRC cannot interrogate the merits of the Director's award; its jurisdiction is limited to enforcement.
  • A party dissatisfied with the Director's decision on an objection must appeal within 30 days; jurisdictional complaints should be raised through that appellate process.

Court orders

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  1. 1.Judgment entered for the Applicant in the sum of Kshs. 16,661,604.00 as assessed by the Director on 5th September 2024
  2. 2.Interest on the said sum at court rates from the date of the decision until payment in full
  3. 3.Respondent to bear the costs of the suit

Authorities

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Legislation

  • Work Injury Benefits ActSection 52(2)
  • Work Injury Benefits ActSections 51 and 52
  • Work Injury Benefits ActSections 2 and 10(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Mwangata v Shyam General Merchants Limited (Cause E086 of 2024) [2025] KEELRC 616 (KLR) (16 January 2025) (Ruling)
    [2025] KEELRC 616 (KLR)
Jurisdiction invoked
Sections 51 and 52 of the Work Injury Benefits Act (adoption/enforcement of Director, WIBA award; s.52(2) appeal mechanism)

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, "Makau v Occidental Insurance Company Limited (Miscellaneous Application E013 of 2025) [2025] KEELRC 2701 (KLR)", Case Analysis (2025). Notice of Motion dated 22nd January 2025 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2701/eng@2025-10-03

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