The applicant filed an application dated 22 August 2024 under the provisions of Section 10(1) and (2), 26(4) and (6) of the Work Injury Benefits Act and seeking orders;
- The court be pleased to adopt the assessment of the Director of Occupational Health and Safety as an order of the court as contained in DOSH/WIBA 4 dated 13 August 2020.
- A decree be issued in accordance with the assessment of the Director of Occupational Health and Safety for the sum of Ksh.445,380 plus interest of Ksh.249,412.80 calculated at 14% per year for 4 years, making a total of Ksh.694,792.80.
- Costs of the application be paid by the respondent.
The applicant supports the application because the respondent employed him as a night security guard. On 24 January 2020, he was injured while on duty. He was treated in different hospitals and then reported the matter to the Director of Occupational Safety and Health Services (Director), who assessed his claim and awarded Ksh.445, 380 in compensation. The Director sent a demand notice to the respondent, but there was no compliance.
The applicant averred in his affidavit that failure to make payment as required by the Director is a criminal offence under Section 26(4) of the Work Injuries Benefits Act (WIBA). An employer who is served with the notice to pay or the insurance company should make payment within 90 days. The 90 days lapsed, and the respondent failed to pay; hence, the application should be allowed with costs.
In reply, the respondent filed the Replying Affidavit of Regina Ireri, the legal officer with M/s Heritage Insurance Company Limited, who avers that she is instructed by the board of directors of the insurer, M/S Heritage Insurance Company, Limited, to attend in this matter. The applicant was injured at work on 24 January 2020, and he made a report to the Director, who assessed his injuries with an award. WIBA intends to address damages arising from work injuries and award compensation based on the wage earned by the employee with statutory limits. The WIBA is designed to streamline compensation for work injuries on set criteria by excluding claims for special damages, which are traditionally subject to strict proof and are outside the WIBA's framework.
Ms Ireri averred that the Director's assessment was for Ksh.421 600, which does not reconcile with the Ksh. 445,380 now sought by the applicant. The additional costs alleged for medical bills of Ksh.20 780 are not justified, and the claim for Ksh. There is no evidence to support the claim for Ksh.3, 000. Both are outside the scope of the Director's award.
The applicant deliberately failed to address the Director's award from 1 August 2020 until this application was lodged. He has filed Mombasa CM ELRC Misc. Appl. E092 of 2024 to seek further claims without evidence. A party who seeks equity must come to court with equity, which the applicant has failed to address. His failure to disclose crucial information to this court is an abuse of the court process and should be dismissed with costs.
Both parties attended and made oral submissions in court.
Determination
The single issue in this application is the applicant's seeking to enforce the Director's award of 13 August 2020 for Ksh.445 380 plus Ksh.249 412.80 at 14% interest for 4 years, the total claim being Ksh: 694, 792.80, and the costs of the application.
The applicant's injury at work on 24 January 2020 is not contested. He admits in his Supporting Affidavit that he was treated at several hospitals and then reported the work injury to the Director, who assessed his injuries and awarded him Ksh.445 380.
The applicant has attached the Director's assessment form dated 13 August 2020, which applies his wage earnings and allocates an award of Ksh.445 380.
The applicant did not contest the award through an objection or an appeal.
The award for work injuries stands at Ksh.445, 380.
Under Section 26 of WIBA, the Director must issue notice to the employer to pay the employee for work injuries based on the assessment. The employer is given 90 days to make a payment or file objections or an appeal under Sections 51 and 52 of the WIBA, respectively.
Notice to the respondent was only issued on 1 August 2024.
The applicant produced no evidence that the respondent, the employer, had been notified of the work injury assessment and award before the notice of 1 August 2024.
The notice is given 21 days before the instant application is filed and before the lapse of 90 days contemplated under WIBA for payment, objections, or an appeal. The rights secured under WIBA protect parties addressed under the Act, including the respondent as the employer.
Accordingly, the award of Ksh.445 380 is due in work injury to the applicant and payable within 90 days from the date of this ruling without diminishing the respondent's rights of objections, appeal or as the case may be. Time starts to run today. Due to these proceedings taking parties back and forth, the applicant failed to disclose that he has also filed Mombasa CM ELRC Misc. Appl. E092 of 2024, no orders on costs.
Orders accordingly.
Delivered in open court at Mombasa on this 29 day of October 2024.
M. MBARŨ
JUDGE