Samuel Kirwa Rop v Kenya Seed Limited & 2 Others

Labour Relations Court Act and Article 47,50 and 159 of the Constitution. The Applicant seeks the following orders: i. That this application be and hereby certified as urgent and heard ex parte in the first instance ii. The Applicant be granted leave to file a claim against the 1st Respondent with the Director of Occupational Safety and Health Services out of time. iii. The Director of Occupational Safety and Health Services be directed to receive the Report of the accident and proceed to make such enquiries as are necessary to decide upon any claim or liability in accordance with the work injury benefit Act,2007. iv. Any such or further orders the Court shall deem fit to grant v. 2. Costs be paid by the Respondents The grounds upon which the application is premised are set out on the face of the application. In brief, the Applicant states that he was employed by the 1 st Respondent as a 2 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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security officer. He avers that, on 9 th August 2013, while travelling in a vehicle belonging to the 1 st Respondent in the course of his employment, he sustained injuries that were subsequently classified as grievous harm. He further avers that, following a medical examination, he was found to have suffered permanent disability and was advised to register as a person with disability (PWD). 3. The Applicant contends that, although he reported the accident to the 1st Respondent in accordance with Section 21 of the Work Injury Benefits Act, the 1 st Respondent failed to report the accident to the Director of Occupational Safety and Health Services. He further asserts that even after reporting the accident directly to the Director, no action has been taken. 4. The Applicant further contends that the 1 st Respondent reported the matter to AMACO Insurance Company Limited, which prepared a discharge voucher without his knowledge, participation or consent. 5. It is therefore the Applicant’s case that it is in the interests of justice for time to be extended to enable the Director of 3 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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Occupational Safety and Health Services to receive, process and determine his claim in accordance with the law. 6. The application is supported by the Applicant’s affidavit sworn on 30th January 2026, in which he reiterates the grounds set out on the face of the Notice of Motion. 7. The application is opposed. The 1 st Respondent filed grounds of opposition dated 30th April 2026, contending that the application is statute-barred. It also filed a Replying Affidavit sworn on the same date contending that following the accident, the Applicant was verbally informed that the initial compensation figure of Kshs. 1,759,885 had been erroneously calculated and subsequently revised to Kshs. 394,005. It avers that the Applicant did not express any dissatisfaction with the revised assessment. 8. The 1st Respondent further avers that the accident was duly reported and that the assessed compensation was paid to the Applicant in instalments on 27 th October 2020, 2nd July 2021 and 23rd February 2022. 4 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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9. It maintained that the Applicant was fully aware of the processing of the payments, received them without protest and did not contest the compensation awarded. 10. According to the 1st Respondent, the entire amount assessed by the insurance company was processed and paid to the Applicant and as such, it does not owe the Applicant any further sum. 11. The 2nd and 3rd Respondents opposed the application through grounds of opposition dated 19 th March 2026, contending that: i. The application is misconceived, incompetent and an abuse of the process of this Honourable Court ii. The application is fatally defective, having been filed in contravention of Sections 22, 23, 26, 28, 30, 37, 51 and 52 of the Work Injury Benefits Act, 2007 iii. The 2nd Respondent was precluded from conducting an investigation under Section 23 of the Work Injury Benefits Act, 2007 because the Applicant failed to 5 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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report the alleged accident within the prescribed statutory timelines iv. The 2nd Respondent is bound by the provisions of the Work Injury Benefits Act, 2007 and may only act within the confines of that statute v. The Applicant failed to lodge an objection or appeal against the award in accordance with Sections 51 and 52 of the Work Injury Benefits Act, 2007 vi. The Applicant’s claim is statute-barred, the alleged cause of action having arisen more than nine years before the present application was filed vii. The Applicant improperly invoked the jurisdiction of this Court mandatory without first complying dispute-resolution with the mechanisms established under the Work Injury Benefits Act, 2007 viii. The Applicant failed to demonstrate any illegality, procedural impropriety or breach of due process on the part of the 2nd Respondent 6 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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ix. Entertaining the Applicant’s Notice of Motion would set a dangerous precedent by opening the floodgates to stale claims and undermining the orderly administration of justice in occupational safety and health matters x. The Applicant’s attempt to reopen the matter after receiving compensation is unjustified and contrary to law. 12. The 2nd Respondent also relied on a Replying Affidavit sworn on 19th March 2026 by Rotuno Cypriano, the Assistant Director of Occupational Safety and Health for Trans Nzoia County. 13. Mr. Cypriano averred that, on 11 th May 2023, the 2nd Respondent received correspondence from Messrs Walter Wanyonyi & Company Advocates, acting on behalf of the Applicant, notifying the office of an accident alleged to have occurred on 10 th April 2014 involving the Applicant, Samuel Kirwa Rop, while he was employed by Kenya Seed Company Limited. That through the said correspondence, the 2 nd Respondent 7 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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was informed that the claim had been forwarded to AMACO Insurance Company Limited for assessment, resulting in an award of Kshs. 394,005, which had already been paid to the Applicant. 14. It is asserted that upon receiving the correspondence, the 2nd Respondent searched all accident records and registers maintained by the office for the period between 2013 and 2023 and did not find any record of the Applicant’s alleged accident. 15. They further averred that neither the 1st Respondent nor the Applicant notified the 2 nd Respondent of the alleged accident within the timelines prescribed by law and that further, the requisite accident notification form, DOSH 1, was also never submitted to the office. 16. It is submitted that the 2nd Respondent was not afforded an opportunity to investigate the alleged accident as required under Section 23 of the Work Injury Benefits Act. In addition, it is contended that the letter from the Applicant’s advocates did not satisfy the statutory requirements for reporting an occupational accident. 8 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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Further, that it was not practicable to conduct an investigation in 2023 concerning an accident alleged to have occurred in 2014. 17. The 2nd Respondent averred that the Applicant had been paid Kshs. 394,005 by 1st Respondent through AMACO Insurance Company Limited in full settlement of his claim. It is contended that the Applicant did not lodge an objection or appeal within the statutory framework prescribed under Sections 51 and 52 of the Work Injury Benefits Act. 18. It was further contended that the claim was statutebarred because the Applicant failed to take action within the timelines prescribed by law and sought to pursue the claim more than nine years after the alleged accident. 19. The application was canvassed by way of written submissions. The Applicant’s submissions 20. In his submissions dated 18th May 2026, the Applicant submitted on the following issues: 9 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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i. Whether this court has jurisdiction ii. Whether the application is statute-barred iii. Whether failure to report the accident under WIBA is fatal iv. Whether the prior insurance payment extinguished the claim v. Whether the Respondents acted lawfully, reasonably and fairly vi. Whether Article 159(2)(d) prevents dismissal on technical grounds 21. On the issue whether this Court has jurisdiction, the Applicant submitted that Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations jurisdiction over Court Act vest this Court employment and labour with relations disputes, including work-injury disputes arising from an employer–employee relationship. According to the Applicant, although the Work Injury Benefits Act (WIBA) establishes a statutory framework for determining workinjury claims, that framework does not oust the Court’s 10 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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constitutional administrative supervisory illegality, jurisdiction procedural where impropriety or violation of constitutional rights is alleged. 22. The Applicant relied on the decision in Law Society of Kenya v Attorney General & Another [2019] KESC 16 (KLR) in submitting that Section 16 of WIBA does not permanently limit an aggrieved party’s right of access to the courts. 23. The Applicant submitted that his complaint related to the employer’s failure to report the accident properly, irregularities in the insurance process, a disputed discharge voucher and the 2nd Respondent’s failure or refusal to address his substantive complaint. He avers that these are not merely compensation issues as they implicate Articles 47, 48 and 50 of the Constitution. He therefore submitted that the Court is properly seized of the matter. 24. On the issue whether the application is statute-barred, the Applicant submitted that the Respondents’ reliance on limitation disregarded the surrounding 11 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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circumstances, continuing including alleged representations and concealment, delayed discovery. Relying on Section 26 of the Limitation of Actions Act, the Applicant submitted that where an action is based on fraud, the right of action has been concealed by fraud, or the action seeks relief from the consequences of a mistake, time does not begin to run until the plaintiff discovers the fraud or mistake, or could with reasonable diligence have discovered it. 25. In his submissions, the Applicant stated that he was assured that his compensation claim was being pursued, that the employer and insurer continued processing the claim over several years, and that he discovered irregularities relating to the discharge documentation in 2021 after which he challenged the compensation process in 2023. 26. The Applicant relied on the case of John Kimathi Gikunda v Rachael Muthoni Njeru & 2 Others [2020] KEHC 1315 (KLR) for the proposition that a time-barred cause of action may, in certain 12 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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circumstances, be revived where the conditions prescribed under Section 27 of the Limitation of Actions Act are satisfied. He also cited the case of Mary Osundwa v Nzoia Sugar Company Limited, Civil Appeal No. 244 of 2000 and submitted that an extension of time under Section 27 of the Limitation of Actions Act is available only in actions founded on tort and relating to negligence, nuisance or breach of duty, where the damages claimed are in respect of personal injuries. 27. The Applicant therefore submitted that the delay arose from the continued handling of his claim by the employer and insurer, which caused him to believe that the process was ongoing and being properly managed. He asserted that he only became aware of the alleged irregularities after discovering the disputed discharge voucher. He therefore submitted that he acted once the irregularities came to his attention and that as such, the delay arose from late discovery rather than inaction. 13 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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28. With regard to the issue whether failure to report the accident under WIBA is fatal, the Applicant submitted that the Respondents sought to punish him for procedural failures substantially attributable to the employer. Citing sections 21, 22 and 23 of WIBA, the Applicant stated that he reported the accident to his employer; was hospitalized and treated; was placed on sick leave; underwent medical assessment and had his claim processed through the employer and its insurer. 29. He argued that it would be manifestly unjust for an employer to fail to discharge its statutory obligation and thereafter rely on that failure to defeat an employee’s claim. 30. On the issue whether the prior insurance payment extinguished the claim, the Applicant submitted that the mere fact that an insurance payment was made did not automatically extinguish his statutory rights, particularly where the assessment is disputed. He disputed the discharge voucher and contended that he neither 14 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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properly executed nor consented to the alleged settlement. 31. The Applicant relied on the decision in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] eKLR for the proposition that an agreement tainted by fraud, coercion or illegality may be challenged. He also relied on Coastal Bottlers Ltd v Kimathi Mithika [2018] eKLR, where the Court of Appeal held that a discharge voucher does not, by itself, absolve an employer from its statutory obligations or preclude the Employment and Labour Relations Court from examining the fairness of the impugned process. 32. Accordingly, the Applicant maintained that a disputed private insurance settlement could not extinguish his statutory entitlements without due process. 33. On the issue whether the Respondents acted lawfully, reasonably and fairly, the Applicant relying on Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act submitted that the Directorate failed to interrogate properly the legality of the 15 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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compensation process after he raised concerns. In support of this argument, he cited the case of Judicial Service Commission v Mbalu Mutava [2015] eKLR, where the Court affirmed that every administrative body is bound by Article 47 of the Constitution. He submitted that public authorities should not hide behind procedural defaults where justice requires a lawful and substantive inquiry. 34. On the issue whether Article 159(2)(d) prevents dismissal on technical grounds, the Applicant submitted that Article 159(2)(d) of the Constitution requires courts to prioritise substantive justice over procedural technicalities. He stated that he is a person living with a disability allegedly resulting from a workplace accident and that as such, the Court should therefore guard against shutting out a potentially legitimate grievance solely on procedural grounds where substantial injustice is alleged. 16 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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35. According to the Applicant, the matter concerns not merely delay, but whether the statutory compensation framework was applied lawfully and fairly. 36. He therefore urged the Court to allow the application as prayed. The 1st Respondent’s submissions 37. In its submissions dated 8 th July 2026, the 1st Respondent identified the following issues for determination: a) Whether the Court has jurisdiction to grant the orders sought b) Whether the application is statute-barred c) Whether the Applicant has established a legal basis for enlargement of time d) Whether Section 26 of the Limitation of Actions Act applies to defeat the provisions of WIBA e) Whether Article 159(2)(d) of the Constitution may be invoked to revive a cause of action extinguished by statute 17 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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f) Whether the alleged discharge voucher invalidates the compensation process g) Whether the application amounts to an abuse of the Court process. 38. On whether the Court has jurisdiction to grant the orders sought, the 1st Respondent submitted that the Applicant’s reliance on Articles 47, 48 and 50 of the Constitution was founded on a misapprehension of the constitutional and statutory framework governing workinjury claims. 39. Relying on the Supreme Court decision in Law Society of Kenya v Attorney General & Another [2019] KESC 16 (KLR), the 1st Respondent submitted that WIBA establishes reporting, the mandatory mechanism investigating, assessing and for determining work-injury claims. It thus submitted that parties must first exhaust that statutory mechanism before invoking the jurisdiction of this Court. It is the 1 st Respondent’s submission that the Supreme Court did not hold that parties may disregard the statutory procedure but 18 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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affirmed that the Director established under WIBA is the initial forum for determining compensation claims. 40. The 1st Respondent application sought submitted to that circumvent the that present statutory framework by asking the Court to direct the Director to commence investigations approximately thirteen years after the alleged accident. It is therefore submitted that such an order would effectively rewrite WIBA and render meaningless the statutory timelines enacted by Parliament. 41. The 1st Respondent relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and submitted that once it became apparent that the statutory process under WIBA had not been invoked within the prescribed timelines, the Court could not create jurisdiction by directing the statutory authority to commence investigations more than a decade later. 42. The 1st Respondent thus maintained that the Court lacked jurisdiction to grant the relief sought. 19 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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43. On whether the application is statute-barred, the 1 st Respondent submitted that the alleged accident occurred on 9th August 2013, while the application was instituted in 2026. It therefore contended that there was a delay of approximately thirteen years which delay was not merely procedural as it went to the existence and enforceability of the Applicant’s cause of action. In support of this position, the 1st Respondent relied on the decision in Divecon Limited v Samani [1995–1998] EA 48 where the Court of Appeal held that when an action is brought outside the statutory limitation period, the Court has no jurisdiction to entertain it unless the relevant statute expressly grants the Court power to enlarge time. Reliance was also placed on Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR, where the Court observed that limitation provisions are founded on public policy and protect defendants against unreasonable and stale claims. 44. The 1st Respondent submitted that the Applicant was aware of the accident, the injuries allegedly sustained, 20 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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his employer’s identity and the purported compensation process from August 2013.That he could not, therefore, claim ignorance of the material facts giving rise to his cause of action. 45. It is the 1st Respondent submission that the Applicant’s complaint was not that he discovered the accident in 2021, but that he subsequently became dissatisfied with aspects of the compensation process. According to the 1st Respondent, limitation runs from the date on which the cause of action accrued, not from the date on which a litigant becomes dissatisfied with the manner in which compensation was processed. 46. In response to the allegation of fraud by the Applicant, the 1st Respondent submitted that a mere allegation of fraud or mistake does not automatically suspend time. It submitted that the Applicant was required to demonstrate, through credible evidence, the existence of fraud or mistake that prevented him from bringing the claim within the prescribed period and that he only discovered the fraud or mistake later. In this regard, the 21 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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1st Respondent submitted that the Applicant had neither annexed the alleged discharge voucher nor identified the specific irregularity complained of. 47. The 1st Respondent application was therefore statute-barred submitted and that ought to the be dismissed on that ground alone. 48. On whether the Applicant had established a basis for extension of time, the 1 st Respondent submitted that the Applicant’s reliance on Sections 26 and 27 of the Limitation of Actions Act was legally untenable as the Applicant had not demonstrated that the Limitation of Actions Act applied in a manner capable of overriding the elaborate statutory framework established under WIBA and further, that Section 26 of the Limitation of Actions Act does not automatically apply whenever a litigant alleges fraud or irregularity as fraud must be specifically pleaded and strictly proved. 49. The 1st Respondent relied on the case of Vivo Energy Kenya Limited v Maloba Petrol Station Limited [2015] eKLR and R.G. Patel v Lalji Makanji [1957] 22 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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EA 314 in submitting that allegations of fraud must be strictly proved. 50. According to the 1st Respondent, the Applicant merely alleged that he discovered an irregular discharge voucher in 2021 and did not explain the circumstances in which the alleged fraud occurred, identify the person responsible or produce cogent evidence of deliberate concealment by the 1st Respondent. 51. The 1st Respondent therefore submitted that mere dissatisfaction with the compensation process could not amount to fraud and suspicion could not substitute proof. It is therefore submitted that the Applicant had failed to satisfy the applicable legal threshold. 52. On the issue whether failure to report the accident under WIBA can revive the claim, the 1st Respondent submitted that the reporting requirements under WIBA serve important public-policy objectives. It is submitted that prompt reporting enables the Director to investigate an accident while evidence is fresh, interview witnesses without delay, evaluate contemporaneous medical 23 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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evidence, inspect the accident scene where necessary and obtain relevant employment records. 53. According to the 1st Respondent, those safeguards would be rendered meaningless if parties were permitted to seek investigations more than a decade after the event. 54. The 1st Respondent submitted that the Applicant’s remedy, if any, lay in the mechanisms established under WIBA and had to be pursued within the prescribed timelines. Those timelines could not be circumvented through an application for leave. 55. On whether Article 159(2)(d) assists the Applicant, the 1st Respondent submitted that the Applicant had misconstrued the purpose and scope of Article 159(2)(d) of the Constitution. According to the 1 st Respondent, Article 159 was not intended to abolish statutory requirements enacted by Parliament or revive claims already extinguished by operation of law. It cannot confer jurisdiction where none exists or override express statutory limitation periods. 24 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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56. The 1st Respondent submitted that limitation is not merely a procedural technicality and that the Applicant could not, therefore, rely on Article 159 to circumvent the mandatory provisions of WIBA or revive a claim arising from an accident alleged to have occurred more than thirteen years earlier. 57. On whether the alleged discharge voucher invalidates the compensation process, the 1st Respondent submitted that the alleged discovery of a discharge voucher purportedly executed without the Applicant’s knowledge or consent did not entitle him to the relief sought. In this regard, the 1st Respondent submitted that the validity of a discharge voucher is an evidential matter that may only be determined in appropriate proceedings supported by proper pleadings and evidence. Further, that the alleged irregularity could not revive statutory timelines that had already expired. According to the 1 st Respondent, the Applicant has not sought a declaration setting aside the discharge voucher. That instead, he sought leave to commence proceedings out of time and 25 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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an order compelling the Director to investigate the claim long after the alleged accident. 58. On whether the application is an abuse of the Court process, the 1st Respondent submitted that the application amounted to an abuse of the Court process since it seeks to revive a stale claim. It is the 1 st Respondent’s submission that the Applicant did not dispute that the alleged accident occurred on 9 th August 2013 or that compensation was processed by the employer and its insurer and that his complaint concerned the manner in which the process was allegedly conducted. That rather than challenge the process within the framework established under WIBA, the Applicant remained inactive for more than a decade before approaching the Court. It is submitted that the delay was inordinate and inexcusable. 59. It is further submitted that allowing the application would prejudice 1st the Respondent and the administration of justice because the passage of thirteen years would inevitably affect the availability and 26 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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reliability of witnesses, documentary records and other evidence necessary for a fair determination. 60. The court was thus urged to dismiss the application with costs. 2nd and 3rd Respondents’ submissions 61. On their part, the 2nd and 3rd Respondents in their submissions dated 16th July 2026 framed the issues for determination to be: i. Whether the Applicant’s claim was lodged contrary to the mandatory provisions and statutory timelines prescribed under WIBA ii. Whether the 2nd Respondent acted within the powers and statutory mandate conferred upon him under WIBA iii. Whether the Applicant is entitled to the orders sought. 62. On the first issue, the 2nd and 3rd Respondents submitted that the Applicant’s contention that non-compliance with WIBA could be cured by Article 159 of the Constitution 27 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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was untenable. According to the 2nd and 3rd Respondents, compliance with the statutory framework goes to the Director’s jurisdiction and mandate to receive, investigate and determine claims. They submitted that the Applicant admitted that the accident allegedly occurred on 9th August 2013 and that he only approached the Directorate in 2023, approximately ten years later. It was therefore submitted that there was no statutory basis upon which the Director could exercise the investigative powers conferred by Section 23 of WIBA. 63. Further, it is submitted that the Applicant had received compensation through his employer’s insurer before seeking to invoke the Director’s statutory mandate and that as such, the process contemplated under Sections 21, 22, 23 and 26 of WIBA had not been invoked within the prescribed timelines. 64. The 2nd and 3rd Respondents submitted that the Applicant’s contention that he discovered irregularities in the discharge documents in 2021 was misconceived. 28 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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They argued that statutory obligations under WIBA are triggered by the occurrence of a workplace accident, not the subsequent discovery of alleged irregularities relating to compensation. 65. They further asserted that although the Applicant maintained that his claim was not statute-barred, he simultaneously sought leave to lodge it out of time. It was argued that the prayer for leave was itself an acknowledgment that the statutory timelines had not been complied with and that his claim before the Directorate was time-barred. 66. It is thus submitted that by operation of Section 26(2) of WIBA, the Applicant’s claim could not be considered under the Act. 67. On whether the 2nd Respondent acted within his statutory mandate, it is submitted that the Director of Occupational Safety and Health Services is a statutory office whose powers and mandate are derived exclusively from WIBA. According to the 2 nd and 3rd Respondents, the Director may only exercise the powers 29 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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expressly conferred by statute and cannot enlarge or extend his jurisdiction on equitable, administrative or other considerations. 68. They submitted that once the Director established that the Applicant sought to invoke the statutory process nearly ten years after the alleged accident and outside the framework prescribed under WIBA, he had no legal authority to receive, investigate or determine the claim. 69. The 2nd and 3rd Respondents submitted that the Director’s statutory mandate could neither be enlarged by the employer’s conduct nor revived by allegations concerning the compensation process as the investigative mandate under Section 23 is triggered only upon compliance with the statutory framework. They maintained that receiving, investigating or determining the Applicant’s claim in the circumstances would have required the Director to act outside the powers conferred upon him by Parliament and would therefore have been ultra vires. 30 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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70. On the issue whether the Applicant is entitled to the orders sought, the 2nd and 3rd Respondents submitted that the orders sought would compel the Director to receive, investigate and determine a claim that could not be considered under Section 26(2) of WIBA. They argued that such an order would require the Director to exercise powers beyond those conferred upon him by Parliament and would be contrary to the statutory framework. 71. The 2nd and 3rd Respondents therefore submitted that the Applicant had failed to establish any legal or statutory basis for the grant of the orders sought. They urged the Court to dismiss the Notice of Motion dated 30th January 2026 with costs. Determination 72. I have considered the application, the rival affidavits, the grounds of opposition, the parties’ respective submissions and the applicable law. In my view, the following issues arise for determination: 31 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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i. Whether this Court has jurisdiction to entertain the application, ii. Whether the Applicant’s claim is statute-barred, iii. Whether the Applicant is entitled to the orders sought. Whether this Court has jurisdiction to entertain the application 73. The jurisdiction of this Court over disputes relating to employment and labour relations is derived from Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.Further, the Court’s jurisdiction over claims for compensation arising from workplace injuries is exercised within the statutory framework established under the Work Injury Benefits Act, 2007 (WIBA). 74. Section 16 of WIBA excludes the original jurisdiction of courts in matters concerning liability and the assessment of compensation for workplace injuries. Sections 23, 30 and 51 of the Act vest the initial responsibility for 32 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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investigating claims, assessing compensation and determining objections in the Director of Occupational Safety and Health Services. 75. In the case of Law Society of Kenya v Attorney General & Another [2019] KESC 16 (KLR), the Supreme Court affirmed the constitutionality of that statutory framework and held that the Director is the initial forum for determining claims arising under WIBA. The Court’s jurisdiction is invoked after the statutory process has been exhausted or where the legality or procedural fairness of the Director’s administrative action is challenged. 76. From a perusal of the orders sought in the instant application, it is clear that the Applicant’s complaint is that the 2nd Respondent declined to receive, investigate and process his claim. The application therefore challenges the lawfulness of an administrative decision made by the 2nd Respondent in the exercise of a statutory mandate. 33 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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77. The Court has jurisdiction to examine whether the 2 nd Respondent acted within the law and, where appropriate, to direct the 2nd Respondent to discharge the statutory mandate conferred upon him. I therefore find that the jurisdictional objection is not merited. Whether the Applicant’s claim is statute-barred 78. Section 26 of WIBA provides: “(1) A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within twelve months after the date of the accident or, in the case of death, within twelve months after the date of death. (2) If a claim for compensation is not lodged in accordance with subsection (1), the claim for compensation may not be considered under this Act, except where the accident concerned has been reported in accordance with section 21.” 34 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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79. Section 21 requires an employee, or a person acting on the employee’s behalf, to give the employer written or verbal notice of an accident arising in the course of employment. Section 22 on the other hand places the obligation upon the employer to report the accident to the Director within seven days of receiving notice or otherwise learning of the accident. 80. The distinction between the obligations imposed by Sections 21 and 22 is material. The employee’s obligation is to report the accident to the employer, whereas the employer bears the subsequent obligation of reporting it to the Director. 81. Although the 1st Respondent contends that no report was submitted to the 2nd Respondent within the prescribed period, it does not deny knowledge of the accident. To the contrary, the 1st Respondent avers that the accident was reported, that the claim was forwarded to AMACO Insurance Company Limited, that compensation was assessed and that payments were made to the Applicant 35 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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on 27th October 2020, 2nd July 2021 and 23rd February 2022. 82. Those averments demonstrate that the 1 st Respondent had knowledge of the accident and processed a claim arising from it. 83. It therefore follows that once the Applicant reported the accident to his employer, the obligation to notify the Director under Section 22 rested upon the 1 st Respondent. An employer cannot fail to discharge that statutory obligation and subsequently rely upon its own omission to defeat an employee’s claim. 84. Moreover, Section 26(2) expressly creates an exception to the twelve-month period where the accident was reported in accordance with Section 21. From the material placed before the Court, the accident was reported to and acted upon by the 1 st Respondent. The Applicant’s claim therefore falls within the exception contemplated under Section 26(2). 85. From the foregoing, the only issue that the court ought to consider is whether the Applicant reported the 36 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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accident as soon as he learned about the fact that the Respondent did not report to the Director or that the tabulation of the compensation was done erroneously. 86. From the evidence on record, the Applicant was paid compensation for the injuries he sustained in the accident on 17th June, 2022. He has deposed in his affidavit that he learned about the existence of an earlier Discharge Voucher of Kshs. 1,759,885 which was subsequently withdrawn and replaced with the one for Kshs. 394,005. 87. Upon inquiry through his advocates by letter dated 26 th November, 2021 addressed to the 1st Respondent, the Insurance Company explained through its advocates letter dated 24th December, 2021, that there was an error in the original discharge voucher, and that the correct compensation was as contained in the voucher which was used to pay the Applicant. 88. The Applicant reported the accident to the Director of Occupational Safety through his counsel’s letter dated 12th May, 2023. 37 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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89. According to the 2nd Respondent, there is no record of the accident in its records. It is further the 2 nd Respondent’s position that Applicant’s advocates does the letter from the not meet the prescribed statutory requirements for reporting an occupational accident and that it was not practical for it to conduct investigations in 2023 into an accident that occurred in 2013. 90. It was further the 2nd Respondent’s position that the Applicant having been paid compensation by the Insurance Company and having not lodged an objection or appeal in respect thereof within the statutory timelines as provided in section 51 and 52 of the Act, the claim was statute barred. 91. From the foregoing, it is apparent that the Applicant became aware of the grounds which he has raised in his application, in December, 2021 and lodged an application on 12th May, 2023. The application herein is dated 30th January, 2026. No explanation has been given why the Applicant did not come to court immediately 38 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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upon learning about the existence of the previous discharge voucher in December, 2021 or immediately upon the refusal of the Director to accept the report of accident made by letter dated 12th May, 2023. 92. The Applicant alleges that there was fraud and relies on section 26 and 27 of the Limitation of Actions Act. The section provides for extension of limitation period as follows: 26. Extension of limitation period in case of fraud or mistake Where, in the case of an action for which a period of limitation is prescribed, either— (a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b)the right of action is concealed by the fraud of any such person as aforesaid; or (c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or 39 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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the mistake or could with reasonable diligence have discovered it: 93. The Applicant did not plead fraud in his application. He did not respond to the averment of the Respondents through a replying affidavit. He has attempted to do so in his submissions. It is trite that submissions are not pleadings and a cause of action or defence cannot be raised in or founded on submissions. 94. Even if the court accepted that there was fraud as alleged, there is no explanation for the inordinate delay between the time the Applicant discovered the fraud in December, 2021 and the time he filed the instant application in January, 2026. 95. The Applicant relied on Article 159(2)(d) to propose that the court should ignore the technicalities raised by the Respondents. As submitted by the 1 st Respondent, the Applicant misconstrued the purpose and scope of Article 159(2)(d) of the Constitution. As submitted, Article 159 was not intended to abolish statutory requirements enacted by Parliament or revive claims already 40 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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extinguished by operation of law. Article 159 expressly refers to “procedural technicalities”. It cannot be relied upon to oust substantive statutory provisions. 96. The Applicant further relied on the provisions of Article 47 of the Constitution and section 4 the Fair Administrative Action Act. Again, these provisions do not apply where, and cannot be invoked by a party, who approaches the seat of justice with unexplained inordinate delay. 97. For the foregoing reasons, I find no merit in the application dated 30th January, 2026. I accordingly dismiss the same. Each party shall bear its costs. 98. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE 41 KTL ELRC MISC APPL. NO. E002 OF 2025 RULING

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