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ELRCDismissedNot stated in judgment (Notice of Motion dated 24th January, 2020 with Memorandum of Claim)

Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR)

Employment and Labour Relations Court
25 June 2020
MMM. Mbaru
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A worker lost his right to enforce a Ksh.691,277 workplace injury award because he waited too long to go to court.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent, sustained a work-related injury on 23rd March, 2015 while driving the respondent's tractor, suffering severe burns to his face and hands with 20% permanent disability. The Director of Occupational Health and Safety assessed the claim and on 11th August, 2015 awarded him Ksh.691,277. The respondent did not pay or appeal. The claimant filed a notice of motion dated 24th January, 2020 seeking enforcement of the award with interest at 14% per annum, invoking section 87 of the Employment Act since WIBA provides no enforcement mechanism. The respondent, through Sandro Spencer, admitted the employment and award but contended that Ksh.272,875 had been paid - Ksh.122,875 in 2018 and Ksh.150,000 on 5th February, 2019 against a signed discharge voucher - and that the suit was time barred under section 90 of the Employment Act. The claimant maintained those payments related to a second accident on 23rd November, 2015, the subject of Eldoret CMCC No.1203 of 2019. The court framed three issues: limitation, payability of the award, and costs. It found the award uncontroverted but held the discharge voucher vague and ambiguous, incapable of confirming partial settlement. Because WIBA and OSHA lack enforcement mechanisms, enforcement lies under section 87 of the Employment Act, making section 90's three-year limitation applicable; the claim filed on 24th January, 2020 was out of time and the court lacked jurisdiction. The claim was dismissed with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim is time barred pursuant to section 90 of the Employment Act, 2007
  2. 2.Whether the award under the Work Injury Benefits Act, 2007 following assessment by DOSHS is payable as claimed
  3. 3.Who should pay costs

Key legal issues

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01

Whether the claim is time barred under section 90 of the Employment Act

Holding

Yes - the claim filed on 24th January, 2020 to enforce an award of 11th August, 2015 was way out of the three-year period, denying the court jurisdiction

Reasoning

All claims premised under the Employment Act are subject to section 90. Since enforcement of a DOSHS award proceeds under section 87 of the Employment Act because WIBA and OSHA provide no enforcement mechanism, the cause of action arose on 11th August, 2015 and the claim ought to have been filed by 10th August, 2019. The claimant never addressed the time lapse. The ambiguous partial payments could not extend time.

p. 3
02

Whether the DOSHS award is payable as claimed

Holding

The court did not reach the merits; the claim failed on limitation although the award itself was not contested

Reasoning

It was not contested that the claimant was injured on 23rd March, 2015 and awarded Ksh.691,277 by the Director on 11th August, 2015. However, the discharge voucher and payments of Ksh.272,875 were vague and ambiguous and did not speak to the partial settlement of the Director's award, possibly relating instead to a second accident of 23rd November, 2015 subject of Eldoret CMCC No.1203 of 2019.

p. 3

Legal principles established

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  • Claims to enforce a DOSHS award under WIBA are filed under section 87 of the Employment Act and are therefore subject to the three-year limitation period in section 90 of that Act.
  • A discharge voucher that is vague and ambiguous cannot be treated as a partial settlement of a Director's award so as to extend the limitation period.

Court orders

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  1. 1.The claim to enforce the Director's award of 11th August, 2015 is dismissed as time barred pursuant to section 90 of the Employment Act, 2007
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Sections 87 and 90 of the Employment Act, 2007; sections 51 and 52 of the Work Injury Benefits Act, 2007

Relief refused

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Payment of Ksh.691,277 as awarded by the Director of Occupational Health and Safety on 11th August, 2015 plus interest at 14% per annum

The claim to enforce the award was filed out of time; the three-year limitation period under section 90 of the Employment Act expired on 10th August, 2019, and the alleged partial payments could not be related to the award to extend time

p. 3

Costs

Each party shall bear own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the claim to enforce the Director’s award of 11 th August, 2015 as herein is time barred pursuant to section 90 of the Employment Act, 2007. Each party shall bear own costs.
p. 3Final orders - dismissal for limitation
To file his claim and seeking to enforce the award as herein under section 87 of the Act on 24th March, 2020 is way out of time and subsequently denies this court the requisite jurisdiction over the matter.
p. 3Limitation and jurisdiction
the practice has been to file such claims under the provisions of section 89 of the Act as the Work Injury Benefits Act, 2007 read with the Occupational Safety and Health Act, 2007 do not outline the enforcement mechanism and procedures
p. 3Enforcement of WIBA awards
The discharge voucher fails to articulate with certainty, clarity and unequivocally as to whether the same covered the award of 11 th August, 2015.
p. 3Ambiguity of discharge voucher

Issues in the judgment

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minor

The award figure appears inconsistently as Ksh.691,277 and Ksh.621,277 in the claimant's submissions

minor

The judgment states the claim was filed on 24th March, 2020 in the disposition whereas the motion and record date it 24th January, 2020

minor

Payment date typo '5 th February, 209' in the claimant's further affidavit narrative

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 24th January, 2020 with Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/847/eng@2020-06-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.