Haji v CG Retread (MSA) Limited (Miscellaneous Application E006 of 2024) [2024] KEELRC 784 (KLR)
The bottom line
#A Kenyan court struck out a workman's misfiled application, confirming that challenging a workplace injury compensation award requires an objection and appeal, not a fresh court application.
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 court can vary or set aside the Director of Occupational Safety and Health award of 31 August 2020 in these proceedings
- 2.Whether the applicant filed an objection with the Director within the stipulated period
- 3.Whether the correct procedure is an appeal under Sections 51 and 52 of WIBA or enforcement of the Director's award
Key legal issues
#Correct procedural route for challenging a DOSH compensation assessment
Variation or setting aside requires an objection to the Director and an appeal to the ELRC under Sections 51 and 52 of WIBA; the application before the court was wrongly filed
The court held that the applicant never objected to the Director's award, and the orders sought (variation) were at variance with his submissions (enforcement). Since the application as couched sought variation without a proper appeal, it could not be allowed. The 97-day absence issue was an employment matter unrelated to the WIBA claim.
Whether the sum of Ksh.118,016.70 assessed by the Director remains due
The full assessed sum remains due since the respondent made no payment for the work injury; the Ksh.118,016 paid was salary for 97 days absent, an employment dues matter
The court distinguished the salary paid for the 97-day absence from compensation under WIBA. Absence without permission is regulated under the Employment Act, while work injury is addressed under WIBA. As no work injury compensation was paid as directed, the assessed sum remains payable - though the court nonetheless struck out the misfiled application.
Costs
Costs awarded to the respondent because the applicant, having relied on Virginia Wangari Muita, was aware of the correct WIBA enforcement procedure yet filed a mischievous miscellaneous application
The applicant had cited authority showing the correct procedure but still filed an application to vary rather than enforce or appeal. The court found he ought to have taken the cue from the respondent's reliance on Sections 51 and 52 of WIBA and addressed the issue accordingly.
Legal principles established
#- Aggrieved by a Director's WIBA compensation award, the procedure is to file an objection and then appeal to the ELRC under Sections 51 and 52 of WIBA
- WIBA has no enforcement mechanism; enforcement of a Director's award is by miscellaneous application invoking the court's jurisdiction under Article 162(2) of the Constitution
Court orders
#- 1.The application dated 7 December 2023 is struck out
- 2.The applicant to pay Ksh.5,000 costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 87 and 90 of the Employment Act, 2007 and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Variation/setting aside of the DOSH award of 31 August 2020 and reassessment per the applicant's medical report
The court was not properly moved; any variation required an objection to the Director and an appeal under Sections 51 and 52 of WIBA
Interest at 14% per annum from 31.8.2020
The application as couched could not be allowed and was struck out
Costs
The applicant to pay Ksh.5,000 costs to the respondent
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 orders sought to vary and or set aside the award of the director cannot be issued under these proceedings.
Where the issue is for enforcement of the director's award of compensation, WIBA currently has no enforcement mechanism and the procedure is to invoke the inherent powers of the court under Article 162(2) of the Constitution.
Accordingly, the application dated 7 December 2023 is without merit and is hereby struck out. Costs of Ksh.5, 000 awarded to the respondent.
Without the respondent making any payment for work injury as directed by the director, the injury at work apparent, the sum of Ksh.118, 016.70 is due.
Issues in the judgment
#Duplicated and inconsistent final orders - paragraph 26 describes the application as 'wrongly filed' while paragraph 27 repeats the disposition describing it as 'without merit', and both appear as consecutive final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji v CG Retread (MSA) Limited (Miscellaneous Application E006 of 2024) [2024] KEELRC 784 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/784/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.