Harrison Makau Muasya v DOSH

The affiant depones that he is the sole proprietor of Chief Chicken Javaris, a food business in Nairobi and the Interested Party was an employed by the business as a cook and not his employed. That he was employed by the business from May 2023 and summarily dismissed in January 2024, was injured by hot cooking oil, taken to Mama Lucy Kibaki Hospital and a bill of Kshs.9,430 was paid as was his salary arrears of Kshs.30,000 and a further bill of Kshs.49,870 incurred at Kenyatta National Hospital. The affiant further deposes that the Respondent attributed liability to him personally without identifying the employer correctly as Harrison Makau Muasya t/a Chef Chicken Javaris and the award was never served on him in any manner which denied him the right to fair hearing and fair administrative action guaranteed by the constitution of Kenya. That he only learnt of ward on 17 th July 2025 when served on WhatsApp and all statutory timelines had lapsed. According to the Applicant, the DOSH Form I on record had irregularities and inconsistences such as “Nichokyalo 071.” was not the Applicant’s Postal address or associated with the business and did not belong to him as has email address is hmaku2@gmail.com The affiant stated that he did not complete the DOSH Form I nor authorize anyone to do so on his behalf and the signature on the form was not his and he was not a “chef” as described therein. That he did not author the DOSH Form I on record and no shot of the online Portal of notification of the award was availed. That one Sally Kamau authored the award. ELRC NAIROBI JR E076 OF 2025

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That the Respondent relied on a Medical Report prepared by Dr. Pras but it was not filed or annexed and the only medical documents availed were those from Kenyatta National Hospital by Dr. Kamadi and Dr. Jowi. That there was no Medical Report and the enforcement was premature as the applicant did not participate in the proceedings as by law required and the Respondent failed to consider the Payments and support extended to the Interested Parly which rendered the award unreasonable and procedurally unfair. According to the affiant the Respondent relied on incorrect information on occupational details and documentation and the award was made in violation of the rules of natural justice. Respondent’s case When the matter came upon for mention on 11 th May 2026 the Respondent’s Counsel was absent and counsel for the Ex Parte applicant sought another mention for the Respondent to comply but counsel was not present on 25th May 2025 and only appeared on 23rd June 2026 when he prayed for 14 days to comply and was accorded 7 days with a mention on 22 nd July 2026 to confirm compliance but had not complied and a judgment date was fixed. Thus the motion is undefended. As to whether the Applicant had established a case for the orders sought to be grated, counsel for the Applicant relied on the decision in Republic v County Government of Nyeri & another Ngamathia t/a Woods Wines & Spirits (2026) KEHC 8944 (KLR) which cited Municipal Council of Mombasa v Republic; Umoja ELRC NAIROBI JR E076 OF 2025

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Consultants Ltd (Interested Party) (2002) KECA 8 (KLR) on the essence of judicial review. Also cited were the decisions in Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others (2016) KECA 729 (KLR), Republic v National Land Commission & 2 others Ex Parte Oyester Village Ltd, Nairobi City County & 2 others (Interested Parties) (2021) KEELC 3496 (KLR) and Faith Wanjiru Maina t/a Lucky Pub Thamanda v OCPD) Kikuyu Police Station & another (2025) KEHC 2818 (KLR) on the foundation of judicial review. Counsel submitted that the Respondent arrived at its decision through an unlawful and procedurally unfair process and the award ought to be quashed. Counsel submitted that the authenticity of DOSH Form I was disputed and thus unreliable as the author was unknown as it was not the ex parte applicant and the respondent did not investigate. That the Respondent’s conduct offended the ex parte applicant’s right a fair administrative action and the provisions of the Fair Administrative Action Act and the decision fell below the constitutional threshold. That the ex parte applicant learnt of the award when he was served with the pleadings in ELRC Misc App No. E203 of 2025 on adoption of the award. Reliance was also placed on the decision in Charles v Cheto (2025) KECA 784 (KLR) for the proposition that an employer who ELRC NAIROBI JR E076 OF 2025

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became aware of the award after the statutory period for lodging an objection could not be denied judicial review. Counsel submitted that the Respondent failed to properly identify the employer against whom the award was issued because the ex parte applicant was employed by a business, but the award was issued against the Applicant without identifying him as the proprietor of Chef Chicken Javaris and the issue was not one of form because the employer ought to be properly identified. Counsel relied on order 30 rule 9 of the Civil Procedure Rules and the decision in Consumer’s Pride Café v King’ori (2023) KEELRC 2131 (KLR) on the need to identify the proprietor of a business where a business name was used. As to why the Order of certiorari should issue, reliance was placed on the decision in Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (197) eKLR, Republic v General Manager East African Portland Cement PLC: Spenomatic Kenya Ltd (Ex Parte) (2015) KEHC5864 (KLR) to submit that the applicant had made a case for the grant of the orders sought. Finally, counsel submitted that the Respondent was liable to pay costs. Reliance was further placed on the decision in Republic v Rosemary Wairimu Munene v Ihururu Dairy Fairmen Cooperative Society Ltd (2020) eKLR on the discretionary nature of costs. ELRC NAIROBI JR E076 OF 2025

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The Respondent did not file submissions. It is not in dispute that the Interested Party was an employee of the ex parte Applicant t/a Chef Chicken Javaris from May 2023 and was injured by not cooking oil in the course of his employment around 28th June 2024. It is equally not in contest that the ex parte applicant ensured that the Interested Party was taken to hospital and attended to at Mama Lucy Kibaki Hospital and later Kenyatta National Hospital and the ex parte applicant paid the bills. Equally not in dispute is the fact that the Director of Occupational Safety and Health Services (herein after DOSH) assessed the amount payable to the Interested Party at Kshs.691,670 on 8 th April 2015. The ex parte Applicant is however contesting the description of the Interested Party’s employer and against whom the award is enforceable, authenticity of the DOSH Form I service of the award, the assessment and the officer who did so. The issues for determination are: (i) Whether the failure to identify “Chef Chicken Javavis” on the award was fatal. (ii) Whether the DOSH Form I was reliable. (iii) Whether the Ex Parte Applicant’s motion is merited. On the 1st issue, the principles that govern institution of suits by or against firms and persons carrying out business in names other ELRC NAIROBI JR E076 OF 2025

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than their own are well settle as correctly submitted by the Applicant’s counsel. Order 30 Rule of the Civil Procedure Rules Provides; Any person carrying on business in a name other than his own may be sued in such name or style as if it were a firm name and so far as the nature of the case will permit all rules under this order shall apply. In Consumer’s Price Cate v Kingo’ri (Supra) Onesmus Makau J held. “There is no doubt that the above rule allows any person carrying on business to be sued in the name or style in which he carries the business as if it were a firm. My interpretation of Rule as above is that the suit should target the proprietor essentially but using the business name. In this case, however, it appears that the Respondent deliberately sued Consumer Price Case as a body corporate and did not target the appellant (proprietor)…” In Lakhman Ramji v Shirji Tessa & Sons (1965) EA Rud J stated; “The legal position is quite clear, a sole proprietor of a business cannot sue in the name of that business if that name is not his own. He should not even sue in his own trading name trading in the business name, he should sue in his own name simpliciter and then in the body of the plaint he can say he carries on business in the name of whatever his business name happens to be and is the sole proprietor of that business.” Similarly, in Kadenge v Leopard Beach Hotel (2023) KEELRC 1360 (KLR) Nzei J held; “a business name is just that a name or style in which a business is carried on. That name or styles is not a juristic person and/or persona juridica who can sue or be sued… It is my finding that a suit cannot be brought against a business name. It can only be brought against the person, legal natural trading in that name…” ELRC NAIROBI JR E076 OF 2025

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The foregoing provisions and propositions of law leave no doubt that while a suit may be instituted against the name or style by which a person carries on business, the action does not belong to the business name or style but the person who carries on the business by the name or style used. This is because a business name or style has no existence outside the proprietor. The name or style signifies the proprietor and any orders or awards made vest in or against the proprietor. Notably, the Applicant provided a copy of the registration certificate of the business which established beyond peradventure that his was a business name and he was the proprietor, the Interested Partys employer. The contention that the award did not correctly describe the person against whom it was enforceable or his employer, lacked persuasion in the face of the law. Noting turns on this issue. Concerning the authenticity of the DOSH Form I the Applicant averred, and counsel submitted that it was unclear as to who completed to form. The Applicant attached two (2) DOSH Form I. incomplete and undated. The 1 st was Only page 1 of the form had entries including the date of the accident as 27 th June 2026. It had a stamp of acknowledgement by the DOSH, Athi River on 11th March 2025. The second DOSH Form I was equally undated on page I, which was completed by the same person as the earlier one and appears to have been a copy of the earlier one. ELRC NAIROBI JR E076 OF 2025 However, it had a page 2

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completed ty one PRAS allegedly of Kenyatta National Hospital but the stamp on that page reads AMREF dated 8 th November 2024 as opposed to Kenyatta National Hospital. Part III of the Form was incomplete. Strangely, the case summary by Kenyatta National Hospital shows that the Interested Party was admitted on 8 th August 2024 and discharged on 23rd August 2024 and a follow up on 3rd September 2024. Page 2 of the DOSH Form I was completed by another person at AMREF as medicated earlier. It is unclear to the court how the Interested Party was admitted at Kenyatta National Hospital almost two months after injuries at the workplace. From the evidence on record, it is unclear as to whom submitted the DOSH Form I to the DOSHS but is appears more probable that the Interested Party did it on account that many parts of the form were incomplete, the form has no authentication by the Ex Parge applicant or nor did it mention his business or the Interested Parties work place. As adverted elsewhere in this judgment, the Interested Party indicated that the accident happened at TRANSAMI where he was a Chef yet the Applicants business was situated in Westlands Nairobi. It is inconceivable how an employer would forget his/her postal address in any and physical location of the business. ELRC NAIROBI JR E076 OF 2025

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Without belabouring the point further, it is the finding of the court that the DOSH Form I on record is characterized by inconsistencies and omissions and thus difficult to assess its authenticity. It appears to have been completed using another one involving a different person, which would explain the glaring inconsistencies. In the court’s view, the DOSH Form I on record lacked authenticity and the assessment resulting from it cannot stand. On the last issue, the ex Parte applicant deponed and submitted that he was denied the opportunity to be heard and only learnt of the existence of the award after it had been made and regrettably, the Respondent did not respond to the instant application, availment of sufficient time by the court notwithstanding. Evidence to prove service of the Interested Party’s claim for compensation ought to have been provided as it is clear that the Applicant neither completed nor forwarded the DOSH Form I to the DOSHS. It was incumbent upon the Respondent and the Interested Party to demonstrate service. It cannot be gainsaid that the right to be heard is a constitutional imperative and one of the cornerstones of due process. In Nicholas Kiptoo Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2015) EKLR, the Supreme Court state: “… This is because the four corners of due process of the law specifically the right to be heard and right to fair hearing require that both parties be heard if an issue is raised before the court in order to accord the court the opportunity to pronounce itself on the issue.” ELRC NAIROBI JR E076 OF 2025

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Article 50 of the Constitution of Kenya provides; “(i) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body” The court laid emphasized on the right to fair hearing in Evans Odhiambo Kidero & 4 others v Ferdinand Waititu & 4 others (2014) eKRL Since the opportunity to be heard is a foundational principle of law in the adversarial system of administration of justice, its denial to a party vitiates any decision made by the decision maker and as submitted by counsel for the ex parte Applicant, the principle of judicial review is now a constitutional imperative. In Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others (Supra), the Court of Appeal held “The law on judicial review of administrative action is now to be found not exclusively in common law but in the principle of article 47 of the Constitution as read with the Fair Administrative Action Act 2015. The Act establishes statutory judicial review with error in section 2 (a) as the centre piece statutory review. The Act provides a constitutionally underpinned irreducible minimum standard of judicial review the act is built on the various of expeditious, efficient, lawful, reasonable, impartial transparent and accountable decisionmaking process in articles 47 and 10 (2) (c) of the constitution… Traditionally, judicial review is not concerned with the merits of the case. In John Florence Mantrine Services & another v Cabine Secretary Transport & Infrastructure & 3 others (2021) KESC 39 (KLR) the Supreme Court held; “Despite the shift from common law to codification in the constitution and the Fair Administrative Action Act, the purpose of the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the ELRC NAIROBI JR E076 OF 2025

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application for judicial review is made but the decision-making process itself…” Other than service, the Applicant faulted the Respondent’s decision on the absence of an investigation to ascertain the facts as availed by the Interested Party. Under Section 23 of the Work Injury Benefits Act (hereinafter WIBA) (1) After having received notice of an accident or hearing learned that an employee has been injured in a accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with this Act. (2) An inquiry made under sub-section (1) may be conducted concurrently with any other investigation. (3) An employer or employee, shall, at the request of the Director, furnish such further particulars regarding the accident as the Director may require. (4) A person, who fails to comply with the provisions of subsection (3) commits an offence. There is no evidence on record to suggest or demonstrate that the Director made any inquiries or investigated the accident. Similarly, other than the undated case summary by Dr. Kamadi, the Interested Party did not avail a comprehensive Medical Report including treatment at Mama Lucy Kibaki Hospital. The Applicant quarried how the 23% permanent incapacity was arrived at without a comprehensive medical report. ELRC NAIROBI JR E076 OF 2025

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In the court’s view, the figure of 23% appear to have been picked from Dr. Kamadi’s assessment of the extent of the burns suffered by the Interested Party of 23% which would not amount to 20% permanent incapacity. Would the absence of opportunity to participate in proceedings adversely affect the uninvited party, want of an inquiry or investigation and essential documents and availment of a document containing inconstancies constitute a sufficient basis on which a court of law could grant judicial review order of certiorari and/or prohibition? In answering this question, the court is guided by the sentiments of the court of Appeal in OJSC Power Machines Ltd & another v public Procurement Administrative Review Board Kenya & 3 others (2017) KECA thus: "The purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies; that it is the purpose of judicial review to ensure that the public bodies after according fair treatment to a party reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court in a judicial review proceedings. Put another way judicial review is concerned with the decision-making process not with the merits of the decision itself. In that regard the court will concern itself with such issues as to whether the public body in making the decision being challenged had the jurisdiction whether the persons affected by the decision were heard before the decision was made and whether in making the decision the Public body took into account irrelevant matters or did not take into account relevant matters.” In the instant case, having found that the Applicant was not heard before the DOSHS pronounced itself on the claim for compensation among other procedural lapses, the court is satisfied that the ELRC NAIROBI JR E076 OF 2025

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Applicant has demonstrated a sustainable case for the grant of the judicial order of certiorari to quash the Respondent’s award dated 8th April 2025. Puzzlingly, the DOSH/WBA 4 on record signed by one Sally Wambui Kamau has no date the date of the accident was wrongly captured and date of the assessment was omitted. Consequently, the ex parte applicant’s motion dated 21st May 2026 is merited and an order of certirori be and is hereby issued to remove into this court for purposes of quashing the decision and demand made by the Respondent on 8th April 2025 requiring payment of Kshs 691,670.76. Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and ELRC NAIROBI JR E076 OF 2025

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the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI JR E076 OF 2025

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