Valley Confectionary Ltd v Director Occupational Safety and Health Service & another (Miscellaneous Application E016 of 2024) [2024] KEELRC 1516 (KLR)
The bottom line
#A Kenyan employer challenging a work injury award lost because it filed the wrong application — challenges to DOSH awards must come as appeals, not objections.
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 should be granted leave to lodge an objection against the award of the Director of Occupational Health and Safety out of time
- 2.Whether this Court has jurisdiction to entertain an objection to the Director's award as opposed to an appeal
- 3.Whether a stay of execution of the Director's award should be granted
- 4.Whether proceedings in Nakuru Chief Magistrate's Court Miscellaneous Civil Application No. E336 of 2023 should be stayed
- 5.Who should bear the costs of the application
Key legal issues
#Whether the ELRC can entertain an application seeking leave to object to a Director's award under WIBA otherwise than by appeal
The Court lacks jurisdiction to hear an objection filed as a miscellaneous application; jurisdiction is exercised only on appeal under section 52(2) WIBA
The Court traced the WIBA scheme: notice of accident (sections 21-22), inquiry by the Director (section 23), settlement within 90 days (section 26(4)), objection within 60 days (section 51) and appeal to the Industrial Court within 30 days of the Director's reply (section 52(2)). Reading section 52(2), the Court held its jurisdiction is lodged as an appeal on the Director's award and not on an objection itself, so the miscellaneous application route chosen by the Applicant was impermissible.
Legal principles established
#- The ELRC's jurisdiction over decisions of the Director of Occupational Safety and Health under WIBA is appellate in nature and can only be invoked by way of appeal, not by an original objection
Court orders
#- 1.The Notice of Motion dated 22nd March, 2024 was dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 52(2) of the Work Injury Benefits Act, 2007 (appeals from the Director to the Industrial Court/ELRC)
Relief refused
#Leave to lodge an objection out of time against the Director's award dated 7th July 2023
The Court's jurisdiction under section 52(2) WIBA is invoked only by way of appeal, not by an objection filed as a miscellaneous application
Stay of execution of the Director's award
Fell with the main application once the Court found it lacked jurisdiction
Stay of proceedings in Nakuru CMCC Misc. Civil Application No. E336 of 2023
Fell with the main application once the Court found it lacked jurisdiction
Costs
No costs order is expressly stated in the ruling; the application was simply dismissed.
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.
My reading of section 52 (2) herein is that this court’s jurisdiction is lodged as an appeal on an award of the director and not on an objection itself.
The applicants have chosen to invoke this court’s jurisdiction on this miscellaneous application to object to the award of the director and not an appeal; it is my finding that this court’s jurisdiction can only be invoked on appeal and not otherwise.
The application is therefore found unmerited and is dismissed accordingly.
Issues in the judgment
#Conflicting dates for the enforcement application service/decision dates across the judgment
The Respondent's submissions elsewhere give a different decision date
Inconsistent references to the lower court application number E336 and E366
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Valley Confectionary Ltd v Director Occupational Safety and Health Service & another (Miscellaneous Application E016 of 2024) [2024] KEELRC 1516 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1516/eng@2024-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.