REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
JR NO. E004 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
HARRISON BARNABAS WECHE…………………………....….. PETITIONER
VERSUS
THE DIRECTOR, DIRECTORATE OF OCCUPATIONAL SAFETY & HEALTH SERVICES…………………… ………………...….1ST RESPONDENT
EAST AFRICA SEED COMPANY……………………..……2ND RESPONDENT
AGRISCOPE (AFRICA) LIMITED…………………………3RD RESPONDENT
RULING
The applicant filed the instant application on 16th December, 2025 seeking orders that:
1. Spent.
2. The Applicant be granted leave to move the court through a substantive application for an order of mandamus compelling the 1st Respondent to include in its award dated 3rd April, 2014, compensation for permanent disability occasioned to the applicant as a result of the accident as well as future medical expenses.
3. Any other orders as the court may deem fit to grant.
4. Costs of this application be in the cause.
The application is expressed under order 53, Rule (1) (2) (3) and (4) of the Civil Procedure Rules Article 47, 25 © and 162 (2) of the Constitution of Kenya, section 86 of the Employment Act and sections 1A, 3 and 3A of the Civil Procedure Act and based on the grounds set out on its face and the statutory statement dated 25th November 2025.
The applicant’s case is that he was involved in an accident at the workplace on 28th March, 2012 and sustained injuries and the matter was reported to the Director of Occupational Safety and Health services (herein-after DOSHS) and the applicant was subsequently awarded Kshs.297,840.00 and instituted Civil Case No. 1633 of 2015 Harrison Barnabas Weche v East Africa Seed Co. & Agriscope (Africa) Ltd at the Milimani Commercial Court for entry of judgment against the 2nd Respondent for special and general damages costs and interest.
The applicant averred that the DOSHS award was not adopted by the court and the file closed on 3rd November 2026 to enable the applicant challenge the award.
According to the applicant, the time within which an appeal would have been made had lapsed and the DOSH award did not include compensation for permanent disability and future medical expenses.
Respondent’s Case
In response, the 2nd and 3rd Respondents filed a Notice of Preliminary Objection contending that:
1. The application is fatally defective and grossly offends the mandatory provisions of section 9(2) of the Law Reform Act.
2. The application is in contravention of the mandatory provisions of section 51 and 52 of the Work Injury Benefits Act, thus the Honourable Court lacks jurisdiction to entertain it.
3. The Application is frivolous and vexatious thus an abuse of court process.
When the matter came up for mention on 4th May 2026, the court issued directions on the disposal of the Notice of Preliminary Objection by way of written submissions not exceeding 5 pages.
2nd and 3rd Respondent’s Submissions
As to whether leave to institute judicial review proceedings should be granted, reliance was placed on the decisions in Ongere & another v Mulabe & 3 others (2025) KEHC 2797 (KLR) and Mirugi Kariuki v Attorney General (1990 -1994) EA 156 (1992) KLR 8, to submit that the only requirement for leave to be granted was an arguable case that the applicant was not accorded a fair hearing by the DOSHS and the court.
The only issue for determination is whether the Respondent’s Notice of Preliminary Objection is merited.
It is not in dispute that the most comprehensive rendition of what constitutes a Preliminary Objection are the sentiments of Law JA and Sir Charles Newbold P in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. In Attorney General & another v Githinji & another (2016) KECA 817 (KLR), the Court of Appeal summarised the test as follows:
“The test to be applied in determining whether the appellants Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa case (Supra). This is first that the Preliminary Objection raises a pure point of law, second that there is demonstration that the facts pleaded by the other side are correct, and third that there is no fact that needs to be ascertained.”
Since the 2nd and 3rd Respondents are challenging the jurisdiction of this court to hear and determine the instant application, the court is satisfied that the Notice of Preliminary Objection dated 8th April, 2026 meets the threshold of a Preliminary Objection.
The first sub-issue for determination is whether the applicant’s motion is fatally defective for non-compliance with the provisions of section 9(2) of the Law Reform Act section a (2) provides that:
Subject to the provisions of subsection (3) rules made under subsection (1) may prescribe that the applications for an order of mandamus prohibition or certiorari shall, in specified proceedings, be made within six months or such shorter period as may be prescribed after the act or omission to which the application for leave relates.
Evidently, since the accident took place on 28th March, 2012 and ML/DOSH/WIBA/FORM 4 was completed on 3rd April 2012 and the instant application was made on 16th December 2026, the application offends the provisions of section 9(2) of the Law Reform Act.
As to whether the court has jurisdiction to hear and determine the instant suit, parties adopted contrasting positions with the Respondents contending that the court had no jurisdiction to hear and determine the instant suit for non-compliance with the provisions of section 51 and 52 of Work Injury Benefits Act.
Section 51 of WIBA provides:
(i) 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.
(ii) 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 questions which he desires to have determined.
Section 52 of the Act the Directors Reply provides:
(i) The Director shall within fourteen days after the receipt of an object in the prescribed form give a written answer to the objection varying or upholding his decision and giving reasons for the decision objected to and shall within the same period send a copy of the statement to any other person affected by the decision.
(ii) An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision.
A cursory reading of the foregoing provisions reveals that neither the objection to the Director of Occupational Safety and Health Services (DOSHS) award under section 51 (1) of the Act nor an appeal to the Employment and Labour Relations Court under section 52 of the Act section 52 (ii) of the Act, was make is not couched in mandatory tone. Both rights are expressed in permissive terms and an object or may opt not to objector appeal.
The crux of the matter is whether an objector who fails, neglects or refuses to object to the DOSHS or after the Objection opts not to appeal to the Employment and Labour Relations Court looses the right to seek judicial review reliefs from this court.
The answer to this question is contained in section 86 of the Employment Act which provides:
(1) Subject to the provisions of this Act, whenever –
(a) an employer or employee neglects or refuses to fulfil a contract of service; or
(b) question, difference or dispute arises as to the rights or liabilities of either party; or
(c) touching any misconduct neglect or ill-treatment of either party or any injury to the person or property of either party, under any contract of service,,,,, the aggrieved party may complain to the labour officer or lodge complaint or suit in the Employment and Labour Relations Court.
(2) No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection (1).
(3) This section shall not apply in a suit where the dispute over a contract of service.
The foregoing provisions lay bare the jurisdiction of the Employment and Labour Relations Court to hear and determine employment related matters on enforcement of rights and duties of parties.
Thus, in the court’s view the failure, refusal or neglect of the Applicant to comply with the provisions of section 51 and 52 of WIBA, which as noted elsewhere in this ruling are not mandatory did not oust the jurisdiction of this court to hear and determine the applicant’s complaint.
However, having found that the relief sought was not applied for within the prescribed duration and is being sought 14 years after the event, the application offends the provisions of section 9(2) of the Law Reform Act and is unsustainable.
Relatedly, the applicant faults the DOSHS and the Magistrates Court yet after the court file was closed, the applicant did not challenge the DOSHS award before the DOSHS whose decision would have appealable to this court under section 52 of WIBA.
The upshot of the foregoing is that the 2nd and 3rd Respondents Notice of Preliminary Objection has merit. The applicant’s application is struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16th JUNE, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 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 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 E004 OF 20262 OF 8 |