Application dated 29th January 2025
1. By the above state application, the Applicant seeks the following orders;
a) THAT the Court be pleased to adopt the assessment of the Director of Occupational Safety and Health Services dated 17/11/2020 as a judgment of the Court.
b) THAT a decree be issued in accordance with the assessment of the Director of Occupational Health and Safety for the sum of Kenya Shillings Six Hundred and Fifty-Five Thousand and Six Hundred (Kshs. 655,600/=).
c) THAT the costs of the application be paid by the Respondent.
2. The Applicant states that he was, at all material times, employed by the Respondent as a driver. On 18th August 2020, he sustained injuries in a workplace accident.
3. Following the accident, the matter was duly reported to the Director of Occupational Safety and Health Services, and the required statutory forms were completed.
4. The Director subsequently assessed compensation at Kshs. 655,600 on 17th November 2020. The Applicant contends that, despite the lapse of more than sixty days since the assessment was served, the Respondent neither objected to nor appealed against the Director’s decision as required by law.
5. He avers that the Respondent has nonetheless failed to settle the assessed compensation and/or refused to do so, thereby necessitating the present application.
6. Accordingly, the Applicant seeks the Court’s intervention to adopt the Director’s assessment as a judgment of the Court to facilitate enforcement and safeguard his rights.
Respondent’s case
7. The Respondent, through its Managing Director, denies having been properly notified or served with any documents relating to the Applicant’s claim or the DOSH process. It asserts that after submitting DOSH Form 1, the Respondent received no communication from DOSH or the Applicant until the present Application was served.
8. The Respondent disputes service of the DOSH Award (DOSH 4), calling the allegation false and highlighting inconsistencies in dates, as the document is said to have been served before it was signed. Additionally, the Award allegedly lacks any acknowledgement of receipt, such as a signature or stamp from the Respondent.
9. It is further contended that a follow-up letter from DOSH dated 20 July 2022 and the Applicant’s demand letter were not served, as there is no proof of service. On this basis, the Respondent contends that there are significant procedural irregularities in the Applicant’s case.
10. Consequently, the Respondent asserts that the Application, including the request to adopt the DOSH Award, is flawed and ought to be dismissed with costs.
Applicant’s submissions in support of the Application dated 29th January, 2025
11. The Applicant is seeking adoption of the Director’s award dated 17th November 2020 for Kshs 655,600.
12. It is submitted that this Honourable Court has inherent jurisdiction to adopt the Director’s award as a judgment for execution, under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act. The Applicant argues that, although the Work Injury Benefits Act is silent on an enforcement mechanism, the Courts intervened to prevent injustice to injured employees. Reliance is placed on Samson Chweya Mwandabole -Vs- Protective Custody Limited [2021] eKLR and Elijah Kisyanga Ndende -Vs- The Manager, Zahkem International Construction Ltd [2022] eKLR.
13. The Applicant states that he sustained a work injury on 18th August 2020, after which DOSH Form 1 was filed and a WIBA 4 award issued on 17th November 2020. It is argued that the Respondent admitted the occurrence of the accident and the filing of the DOSH Form 1, and was therefore aware of the claim. The Respondent’s challenge regarding service is dismissed as inadequate, with the Applicant contending that the absence of a signature or stamp does not negate service since the Respondent cannot be compelled to acknowledge receipt.
14. It is further submitted that the Respondent has neither objected to the award under section 51 of WIBA nor appealed under section 52, and therefore the award remains binding. The Applicant contends that the Court’s role is limited to adopting the award for execution and not to scrutinise its merits. In this regard, reliance is placed on Joash Shisia Cheto v Thepot Patrick Charles [2022] eKLR and Mutuku v Excel Chemicals Limited [2025] KEELRC 1035 (KLR).
15. In conclusion, the Applicant submits that the unchallenged DOSHS award should be adopted as a judgment of the Court to facilitate execution, and prays that the application be granted with costs.
Respondent’s Notice of Preliminary Objection dated 25th July, 2025
16. The Respondent raises the objection;
a) THAT since the present Application is premised on the Employment Act, 2007, it is subject to the mandatory provisions of Section 90 of the Act, which clearly stipulates that all claims must be lodged with this Honourable Court within 3 years: the consequence of which is that the impugned award given on the 17th November 2020 cannot be enforced through the present Application, which was filed on the 29th January 2025, more than 4 years after the award was given.
b) THAT this Honourable Court lacks the jurisdiction to hear this matter as Section 52 of the Work Injury Benefit Act clearly limits the role of this Honourable Court solely to exercising Appellate jurisdiction over decisions by the Director of Occupational Safety and Health Services and does not extend towards adopting the Director's awards.
c) THAT the Applicant's Application is frivolous and this Honourable Court lacks jurisdiction to hear it, and the same ought to be struck out with costs.
Respondent's Submissions in Support of Preliminary Objection dated 25th July 2025
17. In its submissions, the Respondent raises two main issues: whether the Court has jurisdiction to hear and determine the Application, and if so, whether the Application is time-barred.
18. Regarding jurisdiction, it is argued that under section 52 of the Work Injury Benefits Act, the Court’s authority is limited to appellate jurisdiction over decisions of the Director of Occupational Safety and Health Services, and does not include the power to adopt such awards. Reliance is placed on Seme v Sino Hydro Corporation Engineering Bureau 15 Co. Ltd (K) (Miscellaneous Application E009 of 2023) [2024] KEELRC 517 (KLR) and Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR). Consequently, it is contended that the Court lacks the jurisdiction to adopt the DOSHS award.
19. Without prejudice, the Respondent contends that, even if jurisdiction is established, the Application is time-barred under section 90 of the Employment Act. The cause of action for enforcement of the Director’s award accrues 90 days after the date of service of the award, as set out in section 26(4) of the Work Injury Benefits Act. The Respondent relies on Muiruri v China Gansu International Corporation for Economic and Technical Cooperation (K) Ltd (Miscellaneous Application E080 of 2023).
20. Given the Applicant’s own statement that service was effected on 17th November 2020, the cause of action arose on 17th February 2021, and the Applicant had until 17th February 2024 to institute proceedings.
21. The present application, filed on 29th January 2025, should therefore be considered to be outside the statutory limitation period. In support, reliance is placed on Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR).
22. Regarding costs, the Respondent asserts that costs follow the event and requests to be awarded the same for defending the Application.
23. In summary, the Respondent argues that the Application is both incompetent due to lack of jurisdiction and barred by the statute of limitations, and respectfully urges the Court to dismiss it with costs.
Analysis and determination
24. The issues for determination are whether this Court has jurisdiction to adopt the award of the Director of Occupational Safety and Health Services (DOSHS), and whether the Application is time-barred.
25. Undoubtedly, there have been two schools of thought over whether this court has jurisdiction to entertain applications seeking to enforce an award of the Director’s award, considering the lack of an express provision in the Work Injury Benefits Act, providing the mechanism and bestowing jurisdiction. One school of thought is that courts of law do not fold their hands in situations where there is a lacuna in law, and thus leave the citizenry without remedy. Further, a liberal reading of Section 12 of the Employment and Labour Relations Court Act, the stipulations of Article 48 of the Constitution, and other relevant provisions of the Constitution, which command the Courts' duty to advance the law, places the matter squarely within this court's jurisdiction. The other school of thought was that this court has only an appellate jurisdiction.
26. It is important to point out that, as exhibited by various decisions of this Court, I subscribe to the former school of thought. Further, with the Court of Appeal decision in the case of Charles v Cheto [2025] KECA 784[KLR], which clarified the jurisdiction of the Employment and Labour Relations Court, and reinforced the school of thought that the court has jurisdiction to entertain enforcement proceedings in respect of the Director’s award, the conflict of thought is now settled. This Court has jurisdiction. Counsel for the Applicant is urged to review the decision.
27. I am cognizant of the fact that, equally, there have been unsettled waters over whether the limitation of actions period set out in section 89 [formerly 90] of the Employment Act applies to the enforcement of the Director’s award. One school of thought to which this Court subscribes holds that the provision does not apply. On the other hand, there is the view that it does.
28. There is no dispute that the Applicant lodged his claim in the appropriate fora, adhering to the applicable statutory procedure and timelines. Within the statutory process, he obtained a verdict in his favour. In my view, the Respondent erroneously treats the instant proceedings as a claim. To this Court, the Applicant in the instant application has not presented a claim for adjudication but has initiated a process that could lead to the enforcement of the verdict that flowed from his claim mentioned above.
29. I have carefully considered the provisions of section 89 of the Employment Act, which provides;
“Notwithstanding the provisions of section 4[1] of the Limitation of Actions Act [Cap 22], no civil action or proceedings based on or arising out of this Act or a contract of service, in general, shall lie or be instituted unless it is commenced within three years after the act, neglect or default complained or in the case of continuing injury or damage, within twelve months next after the cessation thereof.”
30. And conclude that this provision, from whatever angle looked, does not contemplate initiated proceedings for the enforcement of an award, or verdict, as a result of proceedings under the Act.
31. In my view, once the award of the Director is adopted as a judgment of the court for purposes of enforcement, the applicability of section 4[4] of the Limitation of Actions Act, which has not been ousted by Section 89 of the Employment Act, sets in. See David Mwangi Karanja v Rift Valley Machinery Services Limited [2024] KEELRC 1617[KLR] and Joyce Watiri Kiruga vs Koba Waters Limited and Another [2023] KEERLC419[KLR].
32. For the above premises, respectively, I am not persuaded by the decision cited by the Respondent, Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR).
33. By reason of the foregoing premises, I find the preliminary objection raised by the Respondent lacking in merit. It is hereby rejected.
34. Seeing that the Respondent did not object to the award or appeal against the same as provided for under the provisions of the Work Injury Benefits Act, I have no reason not to adopt the Director's award. The Applicant’s application dated 29th January 2025, is hereby allowed. The award is adopted as a judgment of this Court. Costs of the application shall be in favour of the Applicant.
Read Signed and Delivered this 30th Day of April 2026.