Omar v Mackenzie Maritime [E.A] Limited (Cause E030 of 2021) [2022] KEELRC 4109 (KLR)
The bottom line
#A Kenyan employee won KSh 2.17 million because the employer never formally objected to the workplace injury compensation assessment, making it binding and enforceable.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over work injury claims under WIBA
The court lacks primary/original jurisdiction to determine liability or assess compensation under WIBA, but retains jurisdiction to enforce, by judgment and decree, a director's assessment that was not objected to under section 51
Sections 16 and 23 of WIBA vest determination of liability and assessment of compensation in the director of occupational safety and health services. However, WIBA is silent on enforcement of the director's awards and does not divest the court of jurisdiction to enforce them. An unobjected-to assessment creates a liquidated claim; leaving the employee at the mercy of a non-paying employer would defeat the purpose of the director's assessment, and Article 50(1) guarantees access to a court for such disputes.
Effect of non-objection to the director's assessment of August 13, 2019
The respondent did not lodge an objection in the manner and within the time prescribed by section 51; the insurer's letter of September 23, 2019 was not shown to have been lodged with the director or served on the claimant, so the assessment of ksh 2,167,138.53 stands
Section 51 requires an objection in writing, in the prescribed form, within sixty days, lodged with the director. The respondent's own witness admitted there was no objection to the second assessment; only the insurer wrote a letter not shown to have been served on the director or claimant. The assessment therefore became final and enforceable.
Legal principles established
#- Determination of liability and assessment of compensation in work injury claims is the preserve of the director of occupational safety and health services; the court has no primary or original jurisdiction over such matters
- Once the director assesses compensation and no objection is lodged under section 51 of WIBA, the assessed sum becomes the employee's entitlement enforceable by entry of judgment and issuance of a decree
- Failure by an employer to pay an unobjected-to assessed compensation creates a dispute over a liquidated claim which the court can entertain under Article 50(1) of the Constitution
Court orders
#- 1.Judgment entered for the claimant against the respondent for ksh 2,167,138.53 being the amount of compensation assessed by the director WIBA on August 13, 2019
- 2.The claimant's prayer for compensation for diminished earning capacity is dismissed for want of jurisdiction
- 3.The prayer for conviction of the respondent's directors under section 26(6) of WIBA is dismissed
- 4.The claimant is awarded costs of the suit and interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction; enforcement of an unobjected-to award by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act, read with Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar v Mackenzie Maritime [E.A] Limited (Cause E030 of 2021) [2022] KEELRC 4109 (KLR)", Case Analysis (2022). Statement of claim dated March 11, 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4109/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.