Otieno v Director of Occupational Safety & Health Services & another (Appeal E106 of 2023) [2024] KEELRC 374 (KLR)
The bottom line
#A Kenyan worker's injury appeal failed simply because it was filed late, so tight WIBA deadlines decide these cases.
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 appeal was filed within the statutory timelines under Sections 51 and 52 of WIBA
- 2.Whether the Director's assessment and award of Ksh. 112,666.67 (10% permanent incapacity) should be reviewed or set aside
- 3.Whether the appellant was entitled to general damages of Ksh. 900,000 and future medical expenses of Ksh. 120,000
Key legal issues
#Timeliness of the appeal under Sections 51 and 52 of WIBA
The appeal filed on 18 October 2023 challenging the decision of 9 June 2023 was filed outside both the 60-day objection period under Section 51 and the 30-day appeal period under Section 52, and was time-barred
The Director's decision was delivered on 9 June 2023. The appellant's objection was by letter dated 4 August 2023, and the appeal was lodged on 18 October 2023. The court held that WIBA allows a single objection and an appeal within 30 days of the Director's review or rejection of the objection. Neither timeline was met, and the appellant did not address the lapse or offer any explanation, so the appeal could not be entertained on its merits.
Whether access to justice is denied by the WIBA dispute-resolution scheme
No; the scheme of initial resolution by the Director with appeal to the court under Section 52 satisfies access to justice, as held by the Supreme Court in Law Society of Kenya v Attorney General & COTU
Relying on the Supreme Court's advisory decision, the court noted that Section 16 read with Sections 23 and 52 of WIBA provides an alternative dispute resolution mechanism through the Director, with judicial redress available to aggrieved parties in the Industrial Court (now the Employment and Labour Relations Court). Access to justice is therefore not denied by the statutory scheme requiring appeals to be lodged within the prescribed time.
The correctness of the Director's assessment of 10% permanent incapacity and award of Ksh. 112,666.67
The assessment and award were lawful and confirmed, having been based on a second assessment by Dr. Nelson Mpekethu after the appellant's objection
The 1st respondent explained that after the appellant's objection attaching a 25% assessment by Dr. Darius Wambua Kima, the appellant was subjected to a further assessment by Dr. Nelson Mpekethu who found 10% permanent disability, and compensation was computed at Ksh. 112,666.67 using DOSH/WIBA 4. The court found that the Director followed the law in arriving at this assessment and confirmed the award.
Legal principles established
#- An aggrieved party must lodge an appeal to the court within 30 days from the date of the Director's review or rejection of an objection under Section 52 of WIBA; the Act does not contemplate a second objection
- Under Section 51 of WIBA a person aggrieved by a decision of the Director may object within sixty days of such decision
Court orders
#- 1.The assessment and award of the 1st respondent confirmed at Ksh. 112,666.67 vide award of 9 June 2023
- 2.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Director of Occupational Safety and Health Services (DOSHS)
- Not stated
- Jurisdiction invoked
- Sections 51 and 52 of the Work Injury Benefits Act, 2007 (WIBA) - objections and appeals against decisions of the Director
Relief refused
#Review and/or setting aside of the DOSHS decision of 9 June 2023
The appeal was filed out of time and no explanation was given for the lapse
General damages of Ksh. 900,000 and future medical expenses of Ksh. 120,000 against the 2nd respondent
The appeal was time-barred; the Director's award was lawful and confirmed
Costs of the appeal and the claim before DOSHS
Court made no orders on costs
Costs
No orders on costs (each party to bear own costs implicitly; judgment states 'No orders on costs')
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.
The appeal herein is filed outside time. no explanation is given for such a lapse.
The Act does not contemplate a second objection but an appeal to the court within 30 days from the date of the Director's review or rejection of the objection according to Section 52 of the WIBA.
In the circumstances, access to justice cannot be said to have been denied….
The assessment and award of the 1st respondent are lawful and hereby confirmed at Ksh. 112,666.67 vide award of 9 June 2023. No orders on costs.
Issues in the judgment
#The judgment alternately dates the appellant's objection letter as 18 February 2023 (appellant's submissions) and 4 August 2023 (court's own recital), and the 1st respondent refers to an objection filed on 21 February 2023
The date of the work injury is inconsistently stated: 3 July 2021 per the appellant and 17 August 2022 per the 1st respondent
The Director's award amount appears as both Ksh. 112,666.67 and Ksh. 112,666.69 in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Director of Occupational Safety & Health Services & another (Appeal E106 of 2023) [2024] KEELRC 374 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/374/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.