Kalunge v China Wu Yi Co. Ltd

Facts 3. On 9th March 2019, the Respondent employed the Claimant/Applicant and attached him to one of its yards located at James Gichuru Road, Rironi Camp. 4. On 12th December 2020, while the Applicant was performing his duties, the Respondent's crane was so carelessly and negligently managed, controlled and/or driven by the Respondent's authorized servant, driver and/or agent that it lost control and dropped a metal rod which hit the Applicant on his head occasioning him serious bodily injuries. 5. The Applicant was treated in various hospitals and he made a claim at the Directorate of Occupational Health and Safety Services under claim reference No. WIBA/KBU/576/020/021. 6. On 21st August 2023, the Senior Occupational Safety and Health Ocer made an award in Claim reference No. WIBA/KBU/576/020/021 for Kshs. 455,177/= in favour of the Applicant as against the Respondent herein. 7. The Respondent was made aware of the award and it never challenged the same by any appeal or at all , and the time for doing so has since lapsed. The Respondent was also served by the Directorate of Occupational Health and Safety Services (DOSH) with the demand to pay the said award but it failed to honour the same. 8. The Applicant personally went to the Respondent's oces in an attempt to follow up for the payment but the Respondent declined to honour the same. The Applicant's advocates also served the Respondent with a demand to pay but they declined to receive it and a copy of the said demand was left at their oce. 9. The Respondent opposed the Motion vide a Replying Adavit sworn on 3rd November 2025. The Respondent contends that the application is frivolous, a non-starter, and fatally defective as it discloses no reasonable cause of action against the Respondent. The Respondent further contends that there is no provision under the Work Injury Benefits Act that allows enforcement of an award made under it against the Respondent by this court. 10. The Respondent also contends that there is a legion of rulings from this Court, which agree that this court lacks jurisdiction to entertain the current application as the only jurisdiction granted to the Employment and Labour Relations Court is appellate. It averred that there can be no room to expand this jurisdiction to cover issues which arise in the course of processing of claims before the Director. 11. The Respondent further contends that the DOSH/WIBA award of Kshs. 226,512.00 under temporary disablement cannot and should not be enforced against the Respondent as the Applicant was paid by the Respondent, his full salary and/or wages during the period the Applicant was on sick leave. The Respondent annexed copies of the Respondent's payroll records from 21/10/2020 to 20/11/2021 marked "CWYL-1". 12. The Respondent also contends that it fully catered for the Applicant's treatment expenses at the time of the Applicant's injury and during the period the Applicant was on sick leave. As such it averred that the claim for medical expenses of Kshs. 27,220/= is unmerited and ought to be declined. 13. With respect to the Doshi award, the Respondent contends that it oered to the Applicant the sum of Kshs. 135,907/= for permanent disablement, but he declined the same. The oer of Kshs. 135,907/= was informed by a second medical examination on the Applicant that assessed disability at 9% down from the 15% used to assess the WIBA award. The Respondent annexed copies of the letter dated 29/09/2023 bearing the oer and copy of the Medical report dated 30/08/2023 assessing disability https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2121/eng@2026-07-23 2

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at 9% marked "CWYL-2a" and "CWYL-2b" respectively. Therefore it prayed for the application to be dismissed with costs. 14. The Applicant made a rejoinder vide a Supplementary Adavit sworn on 17th November 2025 contending that this Honourable Court has Jurisdiction to hear and determine the motion herein by didn’t of Article 162(2)(a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act. The Applicant further contends that the authorities referred to in the Replying Adavit are not factual issues, but are subject to legal interpretation by the Court. 15. The Applicant further contends that the Respondent has never appealed or sought for a review of the Director's Award and that the factual issues raised in the Replying Adavit were never tabled before the Director for consideration and determination. Therefore, it contends that the Respondent is therefore estopped from challenging the Award on the factual grounds at this stage of proceedings. 16. The Applicant also contends that the averments regarding payment of full salary and treatment expenses are not true and if anything, all those factors were considered during the award, which the Respondent has not challenged on appeal. The Claimant/Applicant further contends that the Respondent cannot force him to accept any amount less than what was awarded, which award remains unchallenged. Analysis 17. Having considered the instant Motion, the Replying Adavit, the Supplementary Adavit, the Grounds of Opposition, submissions, and the authorities cited, the main issues for determination are: a. Whether this Honourable Court has the jurisdiction to enforce an award made by the Dosh. b. Whether the orders sought should granted. Analysis a. jurisdiction to enforce an award made by the Dosh. 18. The Respondent contends that this Court lacks jurisdiction to entertain the application as there is no provision in the Work Injury Benefits Act that grants this court the power to enforce the Director's award. It cites several decisions of this court to fortify that preliminary point. 19. In the case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] eKLR the Court of Appeal held that: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 18. The Applicant on the other hand contends that this Court has jurisdiction to enforce the Director's award. The Applicant relies on Article 162(2)(a) of the Constitution of Kenya which provides that: “ Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to - (a) employment and labour relations” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2121/eng@2026-07-23 3

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18. The Applicant also relies on Section 12 of the Employment and Labour Relations Court Act which states that:“ The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations.” 18. I do not need to belabor the point as the issue of this court’s jurisdiction to adopt and enforce awards made by the DOSH under WIBA was settled by the Court of Appeal in the case of Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment) when it stated as follows: “ Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director's decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes.” 18. By the above decision, the appellate court armed this court’s rm belief that it was the court clothed with the jurisdiction to adopt and enforce the awards made by DOSH under the WIBA. The said jurisdiction ows naturally from Article 162(2)(a) of the Constitution and section 12 of the ELRC Act which establishes this courts with the status of the High Court to hear and determine disputes relating to employment and labour relations. 19. From the foregoing observations, I nd and hold that this Court has the jurisdiction to entertain the application herein as it seeks adoption and enforcement of an award made by the Director of Occupational Safety and Health Services against the Respondent’s employee under WIBA. b. Reliefs sought 18. The Respondent opposes the DOSH award for various reasons. The Respondent submits the award in respect of temporary disablement is unmerited because Section 28(4) of the Work Injury Benefits Act provides that an employee is not entitled to receive a periodical payment during any period in which the employee is receiving full pay, as provided for in the Employment Act, or any other law or contract of service. 19. The Respondent contends that the Applicant was paid his full salary and/or wages during the period he was on sick leave as per the Respondent's payroll records from 21/10/2020 to 20/11/2021 marked "CWYL-1". 20. The Respondent further contends that the claim for Kshs. 27,220/=, being medical expenses, is unmerited and ought to be declined because it fully catered for the Applicant's treatment expenses from the time of the injury and during the period he was on sick leave and as such. 21. With respect to the DOSH award for permanent disablement, the Respondent contends that the degree of disability was re-assessed as 9% down from the 15% that was used in assessing the WIBA award. Accordingly, it maintained that the proper award should be Kshs. 135,907/= which it oered but the Applicant declined. 22. The Applicant, on the other hand, maintained that the Respondent has never appealed or sought for a review of the Director's Award, and the issues being raised in the Replying Adavit were never tabled before the Director for consideration and determination. He also contends that the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2121/eng@2026-07-23 4

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cannot force him to accept any amount less than what was awarded, as the award remains unchallenged. Therefore, he averred that the Respondent is estopped from challenging the Award on the factual grounds at this stage of proceedings. 23. I have considered the rival submissions and the evidence on record. There is no dispute that the Director of Occupational Safety and Health Services assessed compensation for the Applicant and made an award on 21st August 2023 for Kshs. 455,177/=. There is also no dispute that the Respondent did not object, appeal or seek a review of the Director's decision. The Respondent was very much aware of the sums awarded to the Applicant and the Respondent did not challenge the sums awarded within the prescribed timeline. 31. Section 51 of the Work Injury Benefits Act provides that: 1. Any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision. 2. The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined. 32. The Respondent did not object to the Director's decision at all. The Respondent cannot now purport to challenge the sums awarded by the Director and/or object to the enforcement of the award at this stage. 33. I noted the Respondent's objection to the award for temporary disablement visa vis Section 28(4) of the Work Injury Benefits Act. However, as submitted by the applicant, the Respondent had an opportunity to raise all these issues before the Director or to object to the assessment. As far as this court is concerned, I am dealing with a nal award which has not been challenged through the statutory procedure set out under WIBA. The proceedings before the court are summary and non-litigious, only meant to give eect to the alternative dispute resolution mechanism provided by the law, and therefore the Respondent cannot be allowed to raise new issues at the enforcement stage. 34. In view of the foregoing matters, I nd that the award made by the Director of Occupational Safety and Health Services on 21st August 2023 has not been challenged in any manner provide by the law, and that in fact the timelines for doing so have lapsed. Consequently, I nd and hold that the reliefs sought by the claimant are merited and proceed to allow the Notice of Motion dated 4th April 2024 as follows:a. That Judgment be and is hereby entered for the Claimant as against the respondent for the sum of Kshs. 455,177/= being the award issued in WIBA/KBU/576/020/021. b. That interest at court rates be applied in (a) above from the date of ling the Motion in this Court until payment in full. c. That costs of this Application. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY, 2026. ONESMUS MAKAU JUDGE Appearance: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2121/eng@2026-07-23 5

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Kyule for Ayieko Claimant/Applicant Awino for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2121/eng@2026-07-23 6

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