DAO (Suing on her own behalf and as the next friend to the minor JLM) v Directorate of Occupational Safety and Health & 3 others (Petition E200 of 2023) [2024] KEELRC 1276 (KLR)
The bottom line
#A Kenyan court ruled a minor's work injury compensation can be held by the Public Trustee rather than paid directly to the child's mother.
What this practically means
#Executive summary
#Key legal issues
#Whether the Director's decision to channel the minor's compensation to the Public Trustee was lawful and reasonable
The decision was lawful, within statutory discretion under section 36 of WIBA, and reasonable in the best interest of the child
Section 36(1) permits the Director, for reasons deemed sufficient, to pay compensation to the Public Trustee for the benefit of dependants of a deceased employee. The minor has immediate needs, and entrusting the cheque to a trust account operated by the Public Trustee secures the funds for access in the child's best interest. Neither the mother nor the minor is prejudiced, and the Director was not shown to have acted outside statutory discretion or unreasonably.
Whether the Director violated the petitioner's constitutional rights to fair administrative action and the best interests of the child
No constitutional violation was established; the decision affected the child rather than the petitioner, and the explanation about remarriage was not in the Director's letter
The Court found that the petitioners were not entitled to a hearing because the decision concerned management of the child's share, not the petitioner's own entitlement. The reason of possible remarriage was not contained in the Director's letter, but this did not render the decision unlawful since the Director's discretion under section 36 was otherwise properly exercised and the funds remain accessible for the minor's benefit.
Whether section 52 of WIBA amounted to unexhausted statutory procedure
It did not, because section 52 applies only to disputes about the assessed amount, which was not the subject of dispute here
The respondents argued the petitioner should have lodged an objection or appeal under section 51/52 of WIBA. The Court held that such machinery concerns disputes on the assessed amount or apportionment, which were not disputed; no dependant contested the computation, and some cheques had already been collected. The issue was solely the management of the minor's share, so no statutory procedure was left unexhausted.
Whether the 3rd respondent breached any obligation to the petitioner
The 3rd respondent complied fully with its statutory obligations and the Director's directions
The 3rd respondent reported the workplace death, did not object to the assessment, issued bankers' cheques for each dependant as directed, and facilitated collection of the non-contested cheques on 30.11.2023 and 04.12.2023, receiving a certificate of payment. The Court found it did everything prescribed by law to cause assessment of the award under the Act.
Legal principles established
#- Under section 36 of the Work Injury Benefits Act, the Director may, for reasons deemed sufficient, direct that compensation payable to a dependant who is a minor be paid to the Public Trustee to be applied for the benefit of the dependants
- Where a WIBA decision concerns the custody/management of a minor's compensation rather than a dispute over the assessed amount, section 52 objection and appeal machinery does not constitute unexhausted statutory procedure
- A parent whose own entitlement is not affected by a direction concerning the management of a minor's share of compensation is not entitled to be heard before that direction is made
Court orders
#- 1.In line with the 1st respondent's letter Ref. No. WIBA/Nrb/01328/2022 dated 17.01.2023 the Public Trustee shall open a Trustee Account for the benefit of the minor JLM for the due sum of Kshs. 2,181,818.00, which may be accessed for the benefit of the minor per the relevant statutory provisions governing operation of the account
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Articles 47(1), 10, 35, 41, 53 and 23(e) of the Constitution of Kenya; section 36 of the Work Injury Benefits Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DAO (Suing on her own behalf and as the next friend to the minor JLM) v Directorate of Occupational Safety and Health & 3 others (Petition E200 of 2023) [2024] KEELRC 1276 (KLR)", Case Analysis (2024). Petition No E200 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1276/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.