Osiri v Onda Mechanical EA Limited & 2 others (Employment and Labour Relations Appeal E184, E188, E164 & E178 of 2022 & E066 & E070 of 2020 & E160, E162 & E135 of 2021 (Consolidated)) [2023] KEELRC 3120 (KLR)
The bottom line
#A Kenyan court restored a worker's Kshs 1.12 million injury award because his employer never properly objected or served him with the reduction decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents lodged a formal objection under section 51 of WIBA to the Director's assessment of 9th February 2020 revising the appellant's permanent disability from 15% to 0%
- 2.Whether the Director complied with section 53 of WIBA by giving a written answer to any objection, varying or upholding his decision and giving reasons, and serving a copy on persons affected
- 3.Whether the revision of the assessment without a formal objection and without service violated the rules of natural justice
- 4.What orders should issue in consequence
Key legal issues
#Whether the revision of the Director's assessment without a formal objection under section 51 WIBA was lawful
The revision was unlawful and was set aside; the appellant is entitled to the original assessment of 9th February 2020
The Director had assessed the appellant at 15% permanent disability and awarded Kshs. 1,122,000/- consistent with Dr. Sang's recommendation. No objection in compliance with section 51 WIBA appeared on record. Despite a court order to furnish the objection and the Director's decision, there was non-compliance, permitting the presumption that no objection was filed and no revising decision was made. The prescribed procedure was therefore not adhered to.
Whether the failure to serve the appellant with the objection and the Director's revised decision breached natural justice
Yes - the appellant was condemned unheard contrary to the rules of natural justice
Section 53 WIBA required the Director to give a written answer to any objection within 14 days, with reasons, and to send a copy to every person affected. The appellant was never served with the objection instigating the revision or with the written revised decision, and the significant reduction from 15% to 0% materially affected him. The absence of evidence of compliance meant the statutory and natural-justice requirements were breached.
Legal principles established
#- An objection to the Director's decision under WIBA must be lodged within 60 days, and once lodged the Director must give a written decision with reasons within 14 days, served on all persons affected
- A significant revision of a compensation assessment materially affecting a party requires strict adherence to the statutory procedure; failing which the party is condemned unheard contrary to natural justice
Court orders
#- 1.The appeal is allowed
- 2.The revision of the Director's assessment dated 9th February, 2020 is set aside as unlawful
- 3.The appellant is entitled to be paid the assessment as done by the Director on 9th February, 2020
- 4.The Appellant shall have the costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Director of Occupational Safety & Health Services (DOSH)
- WIBA/NBI/144/2021
- Jurisdiction invoked
- Statutory appeal against the decision of the Director of Occupational Safety and Health Services under the Work Injury Benefits Act (WIBA)
Quotable passages
#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 Court finds and holds that the revision of the director’s assessment dated 9th February, 2020 without any formal objection by the respondent as required by WIBA was unlawful and is hereby set aside. Further, the appellant is entitled to be paid the assessment as done by the Director on 9th February, 2020. The Appellant shall further have the costs of the Appeal
As a result the appellant was condemned unheard contrary to the rules of natural justice.
One can therefore only presume that no such objection was filed and that the Director never made any decision revising his previous assessment made on 9th February, 2020.
Issues in the judgment
#The judgment refers inconsistently to the date of the original Director's assessment, variously described as 3rd November 2020, 9th February 2020, and a decision of 21st/22nd April 2021, without reconciling them
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osiri v Onda Mechanical EA Limited & 2 others (Employment and Labour Relations Appeal E184, E188, E164 & E178 of 2022 & E066 & E070 of 2020 & E160, E162 & E135 of 2021 (Consolidated)) [2023] KEELRC 3120 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3120/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.