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ELRCDismissedNot stated in judgment (Amended Memorandum of Appeal dated 8th March 2025)

Galaxy Paints Ltd v Director of Occupational Safety and Health Services; Karanja (Interested Party) (Employment and Labour Relations Appeal E70 of 2025) [2025] KEELRC 2772 (KLR)

Employment and Labour Relations Court
13 October 2025
4,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan employer's appeal against a work injury award failed because it arranged a second medical exam without DOSH's approval and skipped the statutory objection process.

What this practically means

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Executive summary

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The Appellant, an employer, appealed against the decision of the Director of Occupational Safety and Health Services (DOSH) awarding its former employee, the Interested Party, compensation of Kshs 4,577,352.00 based on a 17% permanent disablement assessed by the Work Injury Evaluation Clinic (WIEC) on 3rd February 2025. The Appellant contended that the Director erred in ignoring a second medical report by Dr. Adegu dated 27th December 2024 assessing 0% permanent incapacity, which the Appellant said was procured with the Interested Party's consent as a consensual post-award ADR process; that reliance on section 25 WIBA violated Articles 10, 41(1), 47, 48, 50(1) and 159 of the Constitution; and that the 17% award was unsubstantiated and contrary to the First Schedule. The Respondent, through an affidavit of Assistant Director David Ondieki, traced the statutory process: initial demand of Kshs 1,240,435.00 based on 5% disablement (Dr. Mwaura), a lawful objection under section 51, referral to a WIEC of three doctors who ordered MRI scans and enhanced disablement to 17%, and a fresh demand on 12th February 2025. The court held that section 25(1) WIBA permits an employer-arranged second examination only with the Director's approval, which was never sought, rendering the Dr. Adegu report an illegality that consent and Article 159(2) could not cure. The WIEC's 17% assessment was supported by MRI scans and consistent with the First Schedule (half of the 35% prescribed for total loss of movement, reflecting a 50% reduction). The Appellant also failed to object to the fresh demand under section 51. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Director erred in law by disregarding the second medical report by Dr. Adegu dated 27th December 2024
  2. 2.Whether the Director's reliance on section 25 of the WIBA violated the Appellant's constitutional rights under Articles 47, 48 and 50(1)
  3. 3.Whether the award of 17% permanent incapacity was unsubstantiated and contrary to the first schedule of the WIBA
  4. 4.Whether this Appeal is merited

Key legal issues

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01

Validity of the second medical examination without the Director's approval

Holding

The examination by Dr. Adegu was unlawful as no approval of the Director was sought under section 25(1) WIBA, and the Director was entitled to disregard the resulting report.

Reasoning

Section 25(1) WIBA permits a second medical examination by a practitioner designated by the employer only with the approval of the Director. The Appellant submitted the report of Dr. Adegu without seeking such approval. The court held the drafters of the Act deliberately placed DOSH at the centre of work injury assessments to protect employees from employer-driven reports, and the unprocedurally procured report could not ground the appeal.

p. 7
02

Whether ADR/consent arguments could validate the second examination

Holding

No; a process that is illegal under the statute cannot be legitimised by invoking consent, ADR or Article 159(2) of the Constitution.

Reasoning

The Appellant argued the second examination was a consensual post-award dispute resolution mechanism akin to a compromise. The court disagreed, holding that parties cannot conduct an activity illegal under the WIBA and then invoke ADR and Article 159(2). The opinion of one doctor hired by the employer's insurer could not outweigh that of three independent doctors on the WIEC.

p. 8
03

Whether the 17% permanent incapacity award was substantiated and consistent with the First Schedule

Holding

Yes; the WIEC's award of 17% was supported by MRI scans and reasoned, being roughly half of the 35% prescribed in the First Schedule for 100% reduced shoulder movement, matching the 50% reduction found.

Reasoning

The WIEC, a panel of three experienced medical doctors, requested and considered lumbosacral and right shoulder MRI scans from German Medical Center, and explained the 17% award by reference to 50% reduced right shoulder movements from rotator cuff tendon tears. The First Schedule prescribes 35% for 100% reduced movement, so 17% for a 50% reduction was justified.

p. 7
04

Whether the Appellant exhausted the statutory objection mechanism

Holding

The Appellant did not object to the DOSH demand of 12th February 2025 within the 60-day window under section 51, but instead filed this appeal.

Reasoning

After being served with the reassessed demand dated 12th February 2025, the Appellant was free to lodge an objection under section 51 of the WIBA. It chose to appeal to the court instead, leaving the DOSH demand unobjected to, which undermined its challenge to the award.

p. 9

Legal principles established

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  • A second medical examination of an injured employee under section 25(1) WIBA may only be undertaken by the employer with the approval of the Director; an examination conducted without such approval is an illegality the court cannot sanction.
  • An employer aggrieved by a DOSH demand should pursue the statutory objection mechanism under section 51 WIBA rather than rely on an unapproved second medical report.

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Directorate of Occupational Safety and Health Services (DOSH)
WIBA/NRB/03029/2024
Jurisdiction invoked
Sections 51 and 52 of the Work Injury Benefits Act (appeal against the Director's decision)

Relief refused

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Review of the Director's assessment of 23rd January 2025 and allowance of the appeal

The second medical report was procured without the Director's approval as required by section 25(1) WIBA

p. 9

Declaration that the Director's application of section 25 WIBA contravened Articles 47 and 159 of the Constitution

The Director acted lawfully; no violation of fair administrative action or fair hearing established

p. 3

Costs

Appeal dismissed with costs (to the Respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Any process outside of the statute that is shown to have been undertaken, either by the Respondent or its agents and/or insurers to the disadvantage of the Applicant regarding the assessment and award made by the Director of Occupational Safety and Health Services was an outright illegality, which this Court cannot sanction.
p. 8Illegality of unapproved second medical examination under section 25(1) WIBA
This is the reason the Act under section 25(1) requires such an employer to only undertake such a second medical examination with approval with the Director. In this case no such approval was sought by the Appellant.
p. 7Statutory requirement of Director's approval
There was no way an opinion of one doctor hired by the employer’s insurer could outweigh opinion of three independent doctors constituted by WIEC.
p. 8Weight of WIEC panel opinion over employer's doctor
In the upshot the Appeal is found unmerited and is hereby dismissed with costs.
p. 9Final orders - disposition
As it stands the DOSH demand of 12th February, 2025 has not being objected to by the Appellant as it chose to appeal to this court.
p. 9Failure to exhaust statutory objection remedy

Issues in the judgment

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minor

Discrepancy in the initial award amount: the Replying Affidavit records a demand of Kshs 1,240,435.00 while the court's narration records Kshs 1,420,435/=

minor

Discrepancy in the date of the Director's response directing the WIEC: the affidavit avers a letter dated 16/01/2025 while the judgment states the Director responded on 16th February 2025

minor

Mislabeling of the Interested Party's status: the grounds and affidavit refer to 'the 1st Respondent' and 'the Claimant' inconsistently when describing the Director and the injured employee

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, "Galaxy Paints Ltd v Director of Occupational Safety and Health Services; Karanja (Interested Party) (Employment and Labour Relations Appeal E70 of 2025) [2025] KEELRC 2772 (KLR)", Case Analysis (2025). Not stated in judgment (Amended Memorandum of Appeal dated 8th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2772/eng@2025-10-13

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