ASP Company Limited v Director Occupational Health and Safety, Kajiado; Musembi (Interested Party) (Judicial Review Application E165 of 2024) [2024] KEELRC 1305 (KLR)
The bottom line
#A Kenyan court dismissed an employer's attempt to challenge a workplace injury compensation order, ruling that a statutory appeal must be pursued before judicial review.
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 applicant's judicial review proceedings were competent in view of the statutory objection and appeal procedure under sections 51 and 52 of the Work Injury Benefits Act, 2007
- 2.Whether certiorari should issue to quash the decision of 25.07.2023 directing compensation of Kshs. 1,936,886.65 for 90% disablement
- 3.Whether mandamus should issue compelling an independent medical examination and an inquiry
- 4.Whether prohibition should issue restraining enforcement of the decision in WIBA/KJD/363/23
Key legal issues
#Exhaustion of statutory remedies before resorting to judicial review
The application was dismissed as an abuse of process because the applicant, having lodged an objection that was rejected, should have appealed to the Industrial Court under section 52 of WIBA instead of filing judicial review proceedings
Section 51 of WIBA permits a person aggrieved by a Director's decision to lodge an objection within sixty days. Section 52 provides that upon the Director's written answer upholding the decision, the objector may within thirty days appeal to the Industrial Court. The court held that this statutory route was the legitimate path; judicial review in breach of it is an abuse of process.
Whether mandamus and prohibition were available on the facts
The remedies failed because the respondents appeared to have performed their statutory duties under WIBA
The court observed that the respondents and interested party did not participate in the proceedings, but on the material filed, the respondents appeared to have carried out their roles under WIBA. In those circumstances, orders of mandamus to compel an examination and inquiry and prohibition against enforcement of the decision could not issue.
Legal principles established
#- Where a statute prescribes an objection and appeal procedure, a party aggrieved by a statutory decision must pursue that procedure; bypassing it by resorting to judicial review constitutes an abuse of court process
Court orders
#- 1.The application is dismissed with no costs
- 2.The Deputy Registrar to return the case file to Machakos sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 rule 3 of the Civil Procedure Rules
Relief refused
#Certiorari to quash the decision of 25.07.2023 that the applicant compensates the interested party Kshs. 1,936,886.65 on account of 90% disablement
Proceedings were an abuse of court process for failure to pursue the statutory appeal under section 52 of WIBA; the respondents performed their duties per WIBA
Mandamus compelling an independent medical examination and an inquiry
Remedies must fail because respondents appear to have performed their duty and roles per WIBA provisions
Prohibition restraining enforcement of the decision dated 25.07.2023 in WIBA/KJD/363/23
Same - statutory appeal route not exhausted; respondents acted within WIBA
Costs
No costs - as respondents never participated, there will be 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 objection having been rejected, the legitimate path was for the applicant to appeal. The applicant instead filed the instant judicial review proceedings.
The Court finds that the proceedings are an abuse of Court process for want of compliance with the prescribed statutory procedure.
the remedies prayed for must fail because the respondents appear to have performed their duty and roles per provisions of WIBA. As respondents never participated, there will be no orders on costs.
In conclusion, the application herein is dismissed with no costs and the Deputy Registrar to return the case file to Machakos sub-registry forthwith.
Issues in the judgment
#The interested party is referred to as 'Kilime Truckers Limited' only implicitly ('the interested party') and the case title/number of the proceedings are not expressly stated in the judgment text provided; case caption reconstructed from context
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ASP Company Limited v Director Occupational Health and Safety, Kajiado; Musembi (Interested Party) (Judicial Review Application E165 of 2024) [2024] KEELRC 1305 (KLR)", Case Analysis (2024). Judicial Review Application (notice of motion dated 19.03.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1305/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.