The applicant filed an application dated 29 April 2025 seeking orders that the court do adopt the Directorate of Occupational Safety and Health Services (DOSH) award of Ksh.86,742 issued on 30 May 2023, as a judgment; the court to order the respondent to pay a fine of Ksh.500,000 under section 26(6) of the Work Injury Benefits Act (WIBA), and costs incurred herein.
The applicant supports the application through his Supporting Affidavit and states that on 27 September 2022, he was injured while at work with the respondents. The matter was reported to DOSH, and an inquiry and assessment of compensation were conducted at Ksh. 86,742. DOSH issued notice to the respondent; there were no objections or appeals as required under section 52 of WIBA. Despite the service, the respondent has not paid the compensation within the allotted time. Under section 26(6) of WIBA, the court should penalise the respondent with a fine not exceeding Ksh. 500,000.
There was no attendance by the respondent.
The application is not opposed.
Whereas the court has jurisdiction to hear the instant application and enforce the DOSH award and compensation for work injuries to the applicant while on the shop floor, the applicant also seeks the court to enforce a fine against the respondent.
in the case of Charles v Cheto Civil Appeal No. E046 of 2022 [2025] KECA, the court held that the jurisdiction to determine an enforcement application upon the DOSH award is with the court.
however, any fine to be imposed against the employer for failure to address the provisions under the WIBA is subject to the procedural requirements stipulated under the Act. This is akin to criminal proceedings, which require different standards and regulations. The subject employer should be invited to respond to the matter and hence accorded due process.
Under the Labour Institutions Act, Labour Officers should prosecute all labour offences. However, these provisions are in contradiction with Article 157 of the Constitution. This is the office given constitutional power to undertake all criminal prosecutions, and such powers have not been delegated to the labour officers. See Director of Public Prosecutions & 2 Others v Pamela Indimuli & 6 Others [2017] eKLR.
In this regard, labour offences must be regularised under the provisions and protections addressed under Article 157 of the Constitution. Although the Labour Relations Act and WIBA came into force in 2007 before the 2010 constitution, and therefore not in tandem, the constitutional threshold stands.
In the case of Ngure Kairu and Bofa Investment v Director of Public Prosecutions Petition No. 1 of 2017 (Malindi), the court held that the power under article 157 is vested in the ODPP and is not donated to labour officers. This position is reiterated in Republic v Douglas Patrick Barasa & another [2014] eKLR (Busia).
The point being, before the imposition of a fine against an employer who contravenes the law and commits labour offences, the mandate upon the labour officer to prosecute is vested with the ODPP. Authority from the ODPP must be issued.
In Tribe Hotel Limited v Muoki [2024] KECA 1673 (KLR), in a case where the employer failed to issue a Certificate of Service under section 51 of the Employment Act, the court held that
… if the respondent desired the appellant to be found guilty for the offence under Section 51 (2) of the Employment Act, she ought to have complained to the police and or authorized labour officer and instigate the commencement of criminal proceedings against her former employer. We note that condemning the appellant to pay a fine of Kshs.100,000.00 and converting the same to a payment to the respondent was not in conformity with Section 51 (3) …
A sanction of a fine must be subjected to proceedings akin to criminal processes under which the ODPP has the mandate to address.
On costs, the respondent was issued with a DOSH notice and failed to pay. The respondent is served with these proceedings and has failed to attend. Costs due shall be taxed.
Accordingly, the application dated 29 April 2025 is allowed and the DOSH award of Ksh. 86,742 confirmed as the final order of the court with costs.
Delivered in open court at Mombasa, this 10th day of July 2025
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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