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ELRCStruck OutMisc Application No E279 of 2025· [2025] KEELRC 2985 (KLR)

Wairimu v Lathyflora (K) Limited (Miscellaneous Application E279 of 2025) [2025] KEELRC 2985 (KLR)

Employment and Labour Relations Court
30 October 2025
OMOnesmus Makau
1,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an injured worker's bid to recover Kshs. 3.4 million in medical bills because they were never assessed through the WIBA process first.

What this practically means

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Executive summary

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The Applicant was injured in the course of employment on 1st January 2023 (the Motion cites 21st January 2023) and the Director of Occupational Safety and Health Services assessed compensation at Kshs. 592,014 vide Dosh/Wiba 4 dated 15th September 2023. The Applicant then filed a Notice of Motion dated 5th August 2025 seeking an order compelling the Respondent to pay Kshs. 3,442,974 as medical expenses incurred at Mediheal Hospital Parklands, with interest and costs, contending the expenses were incurred after the Dosh form was completed and were claimable under sections 45 and 47 of the Work Injury Benefits Act (WIBA). The Respondent filed a preliminary objection arguing the claim was statute-barred, that the medical expenses did not form part of the Director's award, and that the court lacked jurisdiction to entertain enforcement proceedings beyond the assessed award. The court agreed, holding that a party may move the court under WIBA in only two ways: by appeal under section 52(2) against a decision of the Director, or by invoking the court's jurisdiction to adopt and enforce an award, decision or agreement under the Procedure Rules, 2024. Section 47(3) of WIBA vests the determination of the necessity and sufficiency of medical aid in the National Council for Occupational Safety and Health, and the amount claimed was a mere hospital bill never so determined. Following Samuel Otieno Musumba v. Industrial & Commercial Development Corporation, the court held the claim premature, declined jurisdiction, and struck out the Motion. However, considering the serious injuries suffered, the court declined to condemn the Applicant to pay costs.

Key legal issues

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Whether the court has jurisdiction to enforce a claim for medical expenses not included in the Director's award under WIBA

Holding

The court lacks jurisdiction; the claim is premature because the medical expenses were never determined by the National Council under section 47(3) of WIBA and no Director's award was presented for adoption

Reasoning

The court held that under WIBA a party moves the court either by appeal under section 52(2) or by seeking adoption of an award or lawful decision. The Applicant's claim of Kshs. 3,442,974 was a mere hospital bill not determined by the Council as required by section 47(3), so invoking the court's jurisdiction was premature. Section 16 of WIBA bars any action against an employer outside the Act. The court therefore struck out the Motion but spared the injured Applicant costs.

p. 4

Legal principles established

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  • There are only two ways a party can move the court under WIBA: by appeal under section 52(2) against the Director's decision, or by invoking the court's jurisdiction to adopt and enforce an award, decision or agreement under the procedure rules
  • The necessity, nature and sufficiency of medical aid under section 47 of WIBA is determined by the National Council for Occupational Safety and Health, and a court cannot enforce a mere hospital bill that the Council has not determined
  • Section 16 of WIBA provides a mandatory alternative procedure barring any action against an employer save under the Act
  • A court without jurisdiction must down its tools

Court orders

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  1. 1.The Notice of Motion dated 5th August 2025 is struck out for lack of jurisdiction
  2. 2.The Applicant is not condemned to pay costs

Authorities

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Legislation

  • Work Injury Benefits Actsection 2
  • Work Injury Benefits Actsection 16
  • Work Injury Benefits Actsection 17
  • Work Injury Benefits Actsection 26(1)
  • Work Injury Benefits Actsection 27(1)
  • Work Injury Benefits Actsection 29
  • Work Injury Benefits Actsection 45
  • Work Injury Benefits Actsection 47(1)
  • Work Injury Benefits Actsection 47(3)
  • Work Injury Benefits Actsection 52(1)
  • Work Injury Benefits Actsection 52(2)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 69
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 162(2)(a)

Cases cited (1)

  • Samuel Otieno Musumba v. Industrial & Commercial Development Corporation
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act; Work Injury Benefits Act

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, "Wairimu v Lathyflora (K) Limited (Miscellaneous Application E279 of 2025) [2025] KEELRC 2985 (KLR)", Case Analysis (2025). Misc Application No E279 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2985/eng@2025-10-30

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