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ELRCAllowedMiscellaneous Application dated 27th February, 2023

Kapila v Als Limited (Miscellaneous Application E046 of 2023) [2023] KEELRC 2563 (KLR)

Employment and Labour Relations Court
19 October 2023
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who misses the 60-day deadline to object to a workplace injury award cannot later fight the amount in court, which enforced the KShs 3,888,000 payment.

What this practically means

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Executive summary

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The Applicant, a former pilot of the Respondent, applied by a miscellaneous application dated 27th February, 2023 for adoption of a DOSH award of Kshs 3,888,000/= made on 9th July, 2022 under the Work Injury Benefits Act, together with costs and interest. He alleged bilateral sensori-neural hearing loss and tinnitus caused by prolonged noise exposure at work, resigning after an ENT assessment in August 2021. The Respondent opposed, asserting it only received the Director's decision on 19th December, 2022 and had objected on 10th January, 2023 within the 60-day period under section 51 of WIBA; it also challenged the quantum. The court found the Respondent in fact received the decision on 7th September, 2022, making the objection out of time. It further held that WIBA is silent on enforcement of DOSH awards and, following Joash Shisia Cheto v Thepot Patrick Charles [2022] eKLR, the ELRC may be moved to enforce such awards under Article 162 of the Constitution read with section 12 of the ELRC Act. The court held it could not revisit the merits of the assessment, that being the preserve of the Director subject to timely objection and appeal under section 52 of WIBA. The application dated 27th February, 2023 was found merited; the Director's award was adopted as the decree of the court, with interest at court rates until payment in full, and costs were awarded to the Applicant. Judgment was delivered virtually at Nairobi on 19th October, 2023 by Abuodha Jorum Nelson, Judge.

Questions the Court framed

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

  1. 1.Whether the ELRC can adopt and enforce a DOSH award under WIBA where the employer has not objected within time
  2. 2.Whether the Respondent's objection of 10th January, 2023 was filed within the 60 days prescribed by section 51 of WIBA
  3. 3.Whether the court can entertain the Respondent's challenge to the quantum of the Director's assessment

Key legal issues

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01

Enforcement mechanism for DOSH awards under WIBA

Holding

The WIBA is silent on enforcement of the Director's awards; the holder of the award may move the ELRC for enforcement, which may be by way of miscellaneous application.

Reasoning

Relying on Joash Shisia Cheto v Thepot Patrick Charles, the court noted the lacuna in WIBA on enforcement of the Director's award and endorsed the majority view that the ELRC can be moved for that purpose under Article 162 of the Constitution read with section 12 of the ELRC Act. The Applicant's miscellaneous application was therefore a proper vehicle.

p. 3
02

Timeliness of the Respondent's objection

Holding

The objection filed on 10th January, 2023 was out of time as the Respondent had received the Director's decision on 7th September, 2022, beyond the 60 days allowed by section 51 of WIBA.

Reasoning

The court found that although the Respondent claimed it only learned of the award on 19th December, 2022, correspondence with DOSH showed the Respondent received the decision on 7th September, 2022. Section 51 of WIBA requires objection within 60 days, so the 10th January, 2023 objection was late.

p. 2
03

Challenge to quantum of the Director's assessment

Holding

The court could not entertain the challenge to the assessment as it was not sitting on appeal or judicial review.

Reasoning

The court held that dissatisfaction with the award should have been raised by a timely objection and, if necessary, an appeal under section 52 of WIBA. Since no step was taken in time, the Respondent could not challenge the award at the enforcement stage, and the court could not quash the award on judicial review.

p. 2

Legal principles established

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  • The ELRC may be moved, pursuant to Article 162 of the Constitution read with section 12 of the ELRC Act, to enforce a DOSH award, and unless by way of appeal under section 52 of WIBA the court cannot reconsider the merits of the Director's award.

Court orders

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  1. 1.The Director's award of Kshs 3,888,000/= is adopted as the decree of the court
  2. 2.Interest at court rates until payment in full
  3. 3.Costs awarded to the Applicant

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162 of the Constitution as read with section 12 of the ELRC Act

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.

In conclusion the Applicant’s Application dated 27th February, 2023 is found merited and the court adopts the director’s award of 19th December, 2022 at Kshs 3,888,000/= as decree of the court and interest at court rates until payment in full. Costs are awarded to the Applicant.
p. 3Final orders - adoption of DOSH award as decree
Unless by way of appeal under section 52 of the WIBA, it is not open to the court to consider the merits of the Director’s award or indeed go on a fact finding mission.
p. 3Limits of court's review of Director's award
A majority of the decisions favour the view that the ELRC can be moved for this purpose pursuant to its jurisdiction under article 162 of the Constitution as read with section 12 of the ELRC Act.
p. 3Jurisdiction to enforce DOSH awards

Issues in the judgment

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minor

The court's conclusion refers to the Director's award dated 19th December, 2022, whereas earlier paragraphs state the award was made on 9th July, 2022; 19th December, 2022 is the date the Applicant's advocate was furnished a copy.

minor

The Respondent's name is never stated in the judgment; it is referred to only as 'the Respondent'.

minor

Judgment states the Respondent received the DOSH decision on 7th September, 2022 per the Applicant's account, while the Respondent maintains it never received it until 19th December, 2022; the court resolves this in the Applicant's favour.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kapila v Als Limited (Miscellaneous Application E046 of 2023) [2023] KEELRC 2563 (KLR)", Case Analysis (2023). Miscellaneous Application dated 27th February, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2563/eng@2023-10-19

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