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ELRCDismissedNot stated in judgment

Katumbi & another ( Suing as the Administrators and Personal Representatives of the Estate of Boniface Kyungu Nzioka Deceased) v Kinyanjui (Miscellaneous Application E077 of 2023) [2023] KEELRC 3062 (KLR)

Employment and Labour Relations Court (court not expressly named; presided over by a Judge at Nairobi)
24 November 2023
AJABUODHA NELSON JORUM
1,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, an administratrix and spouse of the deceased Boniface Kungu, sought adoption as a court judgment of a DOSH assessment of Kshs. 2,880,000 as compensation for the deceased's fatal workplace injury of 20th June, 2018, together with a decree for execution. The respondent opposed, asserting the deceased was an independent contractor, that the assessment was excessive, and that his right to fair administrative action under Article 47 was breached. He lodged an objection with the Director under section 51 of WIBA, but no response was received under section 52 within the prescribed 14 days; he argued the objection was therefore deemed allowed and that the Court lacked jurisdiction to enforce an award without a final Director's decision. The applicant countered that the respondent had 60 days to object to the email address on the DOSH-1 form and did not use it properly, relying on Kamande v Ace Freight, Mwendabole v Protective Custody and Songoh v Amony Yatich; the respondent relied on Equity Group Holdings v Commissioner of Domestic Taxes. The Court found it unclear whether the DOSH responded to the objection, lamenting that the DOSH was not a party to explain. It held that the failure to respond could not be presumed an allowance of the objection, that compelling payment would part the respondent with property without due process, and directed that the matter be resubmitted to DOSH to decide the objection before the Court assumes jurisdiction. The application was disallowed with each party bearing their 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 DOSH assessment of compensation should be adopted as a judgment of the Court for execution against the respondent
  2. 2.Whether the respondent's objection lodged with the DOSH was filed within the prescribed 60 days
  3. 3.What is the legal effect of the DOSH's failure to respond to the objection within 14 days under section 52 of WIBA

Key legal issues

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01

Effect of non-communication of the Director's decision on an objection under section 52 WIBA

Holding

The objection is not deemed allowed merely because the Director failed to respond within 14 days; the same reasoning could equally be applied to say the objection was dismissed

Reasoning

The court noted both parties agreed the DOSH never responded to the objection. It reasoned that assuming the objection was allowed for non-response would be an assumption no more defensible than assuming it was dismissed. Since no final decision existed, there was nothing to adopt as a decree, and the DOSH, not being a party, could not explain the non-response.

p. 3
02

Protection of property rights in enforcement of assessments

Holding

Adopting the award and compelling payment would amount to parting with property, which requires due process; without a final DOSH decision there is no due-process foundation for execution

Reasoning

The court held that granting the orders would compel the respondent to pay the assessed amount, amounting to parting with property. The constitutional right to property can only be surrendered or lost through due process, which requires a final decision of the Director on the outstanding objection.

p. 3

Legal principles established

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  • Failure by the DOSH to respond to an objection within 14 days under section 52 of WIBA does not, by operation of law, amount to an allowance of the objection
  • Compensation can only be enforced through due process, and the Court should not assume jurisdiction over a WIBA assessment until the Director has decided any objection lodged

Court orders

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  1. 1.The matter be resubmitted to DOSH to make a decision on the objection lodged by the respondent before the Court can assume jurisdiction over the same
  2. 2.The applicant's application dated 3rd April, 2023 is disallowed
  3. 3.Each party to bear their own costs

The bench

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

AJ
majority

Wrote the judgment

Jurisdiction invoked
Section 51 and section 52 of the Work Injury Benefits Act (WIBA) - adoption of a Director of Occupational Safety and Health (DOSH) assessment as a decree of the Court

Relief refused

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Adoption of the DOSH award of Kshs. 2,880,000 as a judgment of the Court and issuance of a decree for execution

The DOSH never decided the respondent's objection, so there was no final decision capable of adoption; the matter was referred back to DOSH

p. 3

Costs

Each party shall bear their 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.

In the circumstances and to do justice the matter, the Court hereby orders that the matter be resubmitted to DOSH to make a decision on the objection lodged by the respondent before the Court can assume jurisdiction over the same.
p. 3Final orders - referral back to DOSH
The application is therefore disallowed for the above reasons. Each party shall bear their own costs
p. 3Disposition and costs
It however cannot be assumed that because the DOSH never responded to the assessment within the prescribed time, it was allowed as argued by the respondent. The same reasoning could be applied by the applicant to say the objection was dismissed.
p. 3No deemed allowance of objection
This would amount to parting with property. The Constitution protects the right to property. That right can only be surrendered of lost through a due process.
p. 3Property rights and due process

Issues in the judgment

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minor

Respondent's dates are internally inconsistent - the affidavit and submissions describe the objection as filed on 15th August, 2023 in one passage and 15th August, 2022 in others

minor

Internal contradiction in dates: the respondent says he received an email on 14th June, 2022 forwarding a decision dated 6th July, 2022, which is chronologically impossible

minor

The name of the respondent/employer is not stated anywhere in the judgment text

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, "Katumbi & another ( Suing as the Administrators and Personal Representatives of the Estate of Boniface Kyungu Nzioka Deceased) v Kinyanjui (Miscellaneous Application E077 of 2023) [2023] KEELRC 3062 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3062/eng@2023-11-24

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