The applicant filed an application dated 14 April 2025 under the provisions of Rule 69 of the Employment and Labour Relations Court (Procedure) Rules and section 19(2) and 51 of the Work Injuries Benefits Act (WIBA), Order 40 and 51 of the Civil Procedure Rules and Article 159 (2) of the Constitution seeking orders.
The court be pleased to adopt as judgment, the assessment of the Director of Occupational Safety and Health Services, Mombasa, made on 28 November 2018, as judgment of the court.
A decree do issue for:
- The sum of Ksh. 850,118 being the director’s award made on 28 November 2018.
- Interests thereon compounded annually at court rates (14%) from the date of the award until payment in full.
The applicant filed his affidavit in support of the application. He avers that he was employed by the respondent for loading and offloading cargo when he sustained injury. The matter was reported to DOSH, and on 28 November 2018, an assessment and award of Ksh. 850,118 was made. The respondent was required to make a payment, which has not been made to date.
The applicant also avers that the respondent, through M/S Jubilee Insurance, wrote a letter dated 9 January 2019 to the insurance brokers M/S Liaison Brokers, instructing the applicant to present himself to their preferred doctors for a secondary assessment, which he did. Despite all efforts to seek a settlement of the claim, the respondent has not made payments. There were no objections or appeals to the DOSH award.
In reply, the respondent filed the Reply Affidavit of Mary Ng’ang’a, the legal officer with M/s Jubilee Allianz Insurance Company Limited, which avers that on 22 March 2025, the court presided over Mombasa ELRC Misc. Application No. E002 of 2025, whereupon the same applicant sought leave to enforce the identical DOSH award issued on 28 November 2018. This is a matter filed out of time and outside the limitation period.
The court dismissed the application upon a reasoned finding that the claim was time-barred and that there existed no legal basis under the Employment Act or the WIBA to enlarge the period within which to bring such an action. The court rejected the appellant''s claim of a continuing injury and hence dismissed the application. The instant application is time-barred, cannot be urged, and should be dismissed.
There is a final determination in the matter and should not be relitigated. The doctrine of res judicata applies to this case. The cause of action arose in 2018, which is out of time. The court has determined that a claim under WIBA does not permit a time extension under section 89 of the Employment Act. This finality should bring the matter to a stop.
The 60 days contemplated under WIBA for lodging an appeal or objections under section 51 lapsed, and the applicant took no steps to urge his case. The applicant is seeking to invoke the court''s discretion, which should not be allowed. The determination under Mombasa ELRC Misc. Application No. E002 of 2025 settled the matters herein.
The applicant submitted that the application herein is premised under WIBA and not the Employment Act (the Act). the provisions of section 89 of the Act do not apply in this case. Under WIBA, there are no timelines for the enforcement of the DOSH award. The respondent has not paid the applicant for the work injury as required under WIBA in accordance with the DOHS assessment and award.
The respondent submitted that the provisions of section 89 of the Act apply in this case. The award, which the applicant sought to enforce and was issued on 28 November 2018, is barred under section 89 of the Act. Under the Act, no civil action should lie unless commenced within three years from the date the cause of action arose. Although DOSH is administrative and requires court proceedings, under section 89 of th Act, a claim of over 7 years is time-barred. Parties should be allowed to move with certainty and bring closure to claims that are over 3 years old. In this instance, there is no jurisdiction to award as herein sought by the applicant.
Determination
Indeed, as submitted by the respondent, the applicant filed Mombasa Misc. Application No. E002 of 2025 is seeking a time extension to file his WIBA claim out of time. The court addressed the matter and rendered a ruling on 27 March 2025. The application was dismissed as it was based under the Act and not WIBA.
The purpose of WIBA is to secure employees who suffer work injuries. The WIBA is couched as an Act of Parliament to provide for compensation to employees for work
related injuries and diseases contracted in the course of their employment and for connected purposes.
Under the WIBA, there is no time limitation for the enforcement of a DOHS award, unlike section 89 of the Act, which requires claims to be filed within 3 years from the date the cause of action accrued or within 12 months for a continuing injury.
Although the WIBA does not have an enforcement framework, Rule 69 of the Court Rules allows proceedings, such as those herein, to be conducted by the applicant to enforce a DOSH award once issued.
The respondent does not contest the work injury to the applicant. There were no objections or appeals filed against the DOSH award of 28 November 2018.
The application of section 89 of the Act does not apply in this instance. The findings under Mombasa EMRC Misc. Application No. E002 of 2025 were specific to the issue of time extension. The purpose of the application was addressed.
The application dated 14 April 2025 is allowed, and the DOSH award of Ksh. 850,118 made on 28 November 2018 adopted as the order of the court. The respondent shall pay within 30 days from the date hereof, after which, costs shall accrue.
Delivered in open court at Mombasa, this 23rd day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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