1. The Applicant’s application before me, dated 4th November 2025, seeks two principal orders: [1] leave to file additional documents in this appeal, and [2] that the additional documents be on-boarded in this appeal by a supplementary record of appeal.
2. The Applicant states that he filed the instant appeal challenging the decision of the Director of Occupational Safety and Health Services made on 22nd January 2025 and the subsequent decision of 9th July 2025, flowing from the 1st Respondent’s decision on his objection.
3. He states that he sustained an injury in the course of his employment. Due to strenuous working conditions, the injury progressively developed into lumbar spondylosis, an occupational disease that causes persistent pain and limits his ability to work.
4. On 3rd May, 2024, the Doctors at Diani Beach Hospital recommended an MRI scan for him. The same was done at Agha Khan Hospital on 8th May 2024. On 10th May 2024, Doctor Kiran Kumar Trauma, an orthopaedic surgeon, diagnosed his condition as multilevel injuries on the spine.
5. Subsequently, due to persistent pain, he sought further medical advice and treatment at various hospitals. He provided the 2nd Respondent with all medical documents relating to the hospital visits and treatment. Further, the 2nd Respondent was at all material times fully aware of his health condition.
6. On 30th December 2024 and 11th January 2025, doctors from the Adena Occupational Health and Safety Centre visited the 2nd Respondent’s premises to conduct medical check-ups, assessments, and reviews of its employees. He, too, was reviewed.
7. Dr. C. Serena prepared a medical report dated 11th January 2025 which concluded that he suffered a 55% permanent incapacity. He forwarded the medical report to the 2nd Respondent under the cover of an email dated 20th January, 2025.
8. He legitimately expected the Director to take into account the more detailed report, but to his surprise, when he received the Director’s decision, it appeared the report hadn’t been considered.
9. It became clear that the 2nd Respondent did not forward the second medical assessment report from Adena Occupational Health and Safety Centre to enable the Director to consider it for his decision.
10. The Applicant states that he sent multiple emails to the 2nd Respondent requesting the Director’s decision, but they dilly-dallied until 25th February 2025. He was compelled to send an email highlighting that the report had not been considered in the decision.
11. He further states that, consequently, he requested that the 2nd Respondent object to the decision on his behalf within sixty days. He discussed the matter with the Human Resources office and the legal officer, who agreed to address it. Despite numerous follow-ups, the 2nd Respondent failed to file the objection, prompting him to approach the County Occupational Safety and Health Officer, who wrote to them on 27th May 2025, directing them to file the objection within 14 days.
12. The 2nd Respondent failed to file the objection within the 14 days. They, however, did so outside the 14-day period.
13. The failure to submit the second medical assessment report to the Director and the failure to lodge the objection within 60 days are wholly attributable to the 2nd Respondent’s inaction.
14. He finally urges this Court to allow the documents, the subject matter of the instant application, into this appeal and to consider them in the computation of the compensation payable to him.
15. The 1st Respondent opposes the application on the grounds set out in the replying affidavit sworn by Maryam Taufiq, an Assistant Director of Occupational Safety and Health Services in charge of Kwale County.
16. It is stated that on the 29th November, 2024, they received notification by the 2nd Respondent of an accident [occupational disease] involving the Appellant on 29th November 2024, by DOSH 1.
17. Upon receipt of the Dosh 1 form and a medical report in respect of the Appellant, they proceeded to compute and raise a demand [Dosh/WIBA 4] dated 22nd January 2025. They lodged the demand with the 2nd Respondent, the employer, for settlement of the computed amount within 90 days. The total sum computed in favour of the Appellant was KShs. 4, 340, 310. 41.
18. The 2nd Respondent did not raise any objection to the claim or demand made by the 1st Respondent within sixty days in accordance with Section 51 of the Work Injury Benefits Act.
19. On 25th June 2025, they received an objection in the prescribed form dated 25th June 2025 from the 2nd Respondent objecting to the demand of KShs. 4,340,310,41, an objection which was out of the prescribed period of sixty days.
20. On 9th July 2025, the 1st Respondent made a decision on the objection to the effect that it would not be considered as it had been lodged out of the statutory period. A written answer was given the 2nd Respondent on same day.
21. Through an affidavit sworn by Anne Mercy, the 2nd Respondent opposes the Appellant’s application. It argues that the application is misconceived, incompetent, bad in law and an abuse of the court process.
22. Further, the Applicant hasn’t laid any sufficient basis or any at all for the grant of the orders sought.
23. The documents sought to be introduced by the Applicant did not form part of the record of the proceedings before the Director of Occupational Safety and Health Services. The conditions for admission of new evidence as provided for under order 42 Rule 13 of the Civil Procedure Rules have not been met.
24. The documents sought to be introduced particularly the MRI Lumbosacral Spine report, were available to the Applicant as early as 8th May 2024, which was over a year before the DOSH Form 4 was published and well before the objection was lodged.
25. It contends that if the Court were to rely on the Adena medical report to vary the Director’s award, it would be doing so based on evidence that was not adopted or explicitly approved by the Director contrary to section 25 [1] of the Work Injury Benefits Act thus circumventing the statutory procedure established for introduction of medical assessments for purposes of compensation claims.
26. The Appellant is seeking to re-litigate the matter to its prejudice.
Analysis and Determination
27. Undoubtedly, the Work Injury Benefits Act, with deliberation, provides for various processes and makes each of them time-bound. Section 51 provides for lodging an objection against the Director’s decision or action, while Section 52 provides for filing an appeal against the Director’s decision to the Employment and Labour Relations Court. The Appellant explicitly admits in his affidavit in support of the instant application and ground 6 of the memorandum of appeal herein that no objection was filed against the Director’s assessment and award within the 60 days prescribed under the Act.
28. Inarguably, therefore, an appeal against the assessment could not lie to this Court in light of the provisions of section 52 of the Act. This Court is therefore driven to the inescapable conclusion that the appeal against the assessment and the award of the Director is improperly before this Court, and is hereby struck out.
29. The documents for which the Appellant seeks leave to add are intended to bolster his assertion that there was an underassessment of the permanent incapacity and under-award of compensation amounts. Having found, as I have hereinabove, that the appeal against the assessment and award was improperly filed, and consequently struck the same out, there can be no basis or purpose for allowing the filing of additional evidence as sought. Doing so shall constitute an unnecessary academic exercise.
30. It is important to note that I have carefully considered the parties’ respective submissions, which I must say are well researched and presented. The fact that I have not referenced them does not mean that I didn’t attach any value to them.
31. In the upshot, the Appellant’s application herein is unmerited, and it is hereby dismissed with costs.
Read Signed and Determined this 5th Day of February 2026.