Bosibori (Suing as administrator of the Estate of Samuel Onyancha Kinanga (Deceased) v Dock Workers Union Limited (Miscellaneous Application E031 of 2023) [2023] KEELRC 3169 (KLR)
The bottom line
#A family's attempt to convert a Ksh. 16.4 million workplace death compensation award into a court judgment failed because a Certificate of Dependency must come first under WIBA.
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 Director's award of compensation of Ksh. 16,482,336 under WIBA could be adopted as judgment of the court
- 2.Whether the proceedings were premature in the absence of a Certificate of Dependency and compliance with sections 6 and 34 of WIBA
Key legal issues
#Prematurity of adoption of DOSH award in fatality cases
Proceedings to adopt the Director's award were premature because a Certificate of Dependency must issue before payment can be effected in a fatality case
Under WIBA, where a work injury results in death, the Director is required under section 6 to pay dependants in accordance with the Third Schedule, read with section 34. A limited grant ad litem alone is insufficient; the Director must ascertain dependants and allocate compensation based on a Certificate of Dependency before issuing payment notices. The applicant was therefore directed back to the Director.
Legal principles established
#- In a fatal work injury, a Certificate of Dependency must issue and the Director must ascertain dependants and apply the Third Schedule before payment of compensation
Court orders
#- 1.Proceedings struck out as premature
- 2.Parties to revert back to the Director in terms of sections 6 and 34 of WIBA read together with the Third Schedule
- 3.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 47, 48 and 50(1) of the Constitution; sections 87 and 90 of the Employment Act; rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Work Injury Benefits Act, 2007
Relief refused
#Adoption of the Director of Occupational Safety and Health Services' award as judgment of the court and entry of judgment for Ksh. 16,482,336 plus interest
Proceedings premature - no Certificate of Dependency; Director must act under sections 6 and 34 of WIBA read with the Third Schedule before payment
Costs of the application
Court declined to award costs despite the respondent's non-participation
Costs
No costs shall issue; no orders on costs - each side bears own costs (no costs awarded).
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.
These proceedings are premature. Parties shall revert back to the Director in terms of sections 6 and 34 of WIBA read together with the Third Schedule thereof.
Accordingly, proceedings herein are premature and are hereby struck out. Parties shall revert back to the Director. No orders on costs.
It is not suficient that the applicant has obtained Limited Grant of Letters of Administration ad litem.
Issues in the judgment
#Respondent is not named anywhere in the judgment; proceedings are described as ex parte against an unnamed respondent
Typographical error - 'Detector' used instead of 'Director'
Inconsistent dates for the Director's assessment - 11.3.2022 in the application versus 9 March 2022 in the determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bosibori (Suing as administrator of the Estate of Samuel Onyancha Kinanga (Deceased) v Dock Workers Union Limited (Miscellaneous Application E031 of 2023) [2023] KEELRC 3169 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3169/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.