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ELRCAllowedNotice of Motion dated 19.04.2024 (Judicial Review)

Republic v Nairobi County Occupational Safety and Health Services Officer (Directorate of Occupational Safety and Health Services); Kole (Exparte Applicant); Vimit Converters Limited (Interested Party) (Judicial Review Application E039 of 2023) [2024] KEELRC 2056 (KLR)

Employment and Labour Relations Court
26 July 2024
732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex-parte applicant, employed by Vimit Converters Limited for six years as a machine operator, was injured in an occupational accident on 10.02.2023 and suffered permanent incapacitation assessed at 45%. His employer notified the Directorate of Occupational Safety and Health Services (the respondent) of the accident by notice dated 27.04.2023. Despite reminders, the respondent took no steps to assess or award compensation. The applicant moved the court by Notice of Motion dated 19.04.2024 under Order 53 rule 3 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act, seeking an order of mandamus compelling the respondent to make an award under the Work Injury Benefits Act, 2007 within 21 days, plus costs. The respondent did not enter appearance or respond. The interested party (employer) filed grounds of opposition, contending it had duly discharged its duty under sections 21 and 22 of the Act by notifying the respondent, that the mandate to make or refuse an award lay with the respondent under sections 23, 14 and 13, and that it should not have been joined or blamed. The court found the employment relationship undisputed, found the accident duly reported, and held that the respondent had failed, despite reminders, to perform its statutory duty to assess and award compensation. It concluded that the criteria for mandamus were satisfied and entered judgment for the applicant, issuing mandamus compelling the respondent to make the award based on the 27th April 2023 notice by 01.09.2024, with costs to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant satisfied the criteria for grant of an order of mandamus compelling the respondent to make an award under the Work Injury Benefits Act, 2007
  2. 2.Whether the interested party was properly joined and whether it bore any blame for the failure to make the award
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Entitlement to mandamus against the respondent under the Work Injury Benefits Act, 2007

Holding

The court found the criteria for mandamus satisfied because the employer-employment relationship was undisputed, the accident was reported, and the respondent failed to perform its statutory duty despite reminders.

Reasoning

The court accepted that the interested party had employed the applicant when the injury accrued and that the accident was duly reported to the respondent on 27.04.2023. Despite reminders, the respondent neither made nor refused an award, contrary to its statutory duty under the Work Injury Benefits Act to assess and award compensation upon notification. That inaction warranted mandamus to compel performance.

p. 3
02

Role and liability of the interested party (employer)

Holding

The employer had discharged its statutory duty by notifying the respondent of the occupational accident, and the jurisdiction to make or refuse an award vested in the respondent alone.

Reasoning

The interested party filed grounds of opposition asserting that under sections 21 and 22 of the Work Injury Benefits Act it was its legal duty to notify the Directorate of the occupational accident, which it did on 27.04.2023. The court did not blame the employer, and mandamus was directed solely at the respondent, who held the statutory mandate to make or refuse an award under the Act.

p. 3

Legal principles established

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  • Where an occupational accident has been duly reported to the Director of Occupational Safety and Health Services and the Director fails to perform the statutory duty to assess and award compensation, mandamus will issue to compel the Director to make the award.

Court orders

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  1. 1.Order of mandamus issued compelling the respondent to make an award to the ex-parte applicant under the Work Injury Benefits Act, 2007 based on the notice of 27th April 2023 as filed by Vimit Converters Limited, and to do so by 01.09.2024
  2. 2.Respondent to pay the applicant's costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 53 rule 3 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act

Quotable passages

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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 Court finds that the applicant has satisfied the criteria for grant of mandamus.
p. 3criteria for mandamus
The accident or injury was reported to the respondent who despite reminders by the applicant has failed to perform the statutory duty to assess and award compensation.
p. 3respondent's failure of statutory duty
The order of Mandamus hereby issued to compel the respondent herein to make an award to the ex-parte applicant under the Work Injury Benefits Act, 2007 based on the notice of 27th April 2023 as filed by Vimit Converters Limited (the employer) and to do so by 01.09.2024.
p. 3final orders - mandamus issued
The respondent to pay the applicant’s costs of the application.
p. 3costs order

Issues in the judgment

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minor

The judgment's numbered opening paragraphs appear as blank placeholders ('1.' and '2.') and paragraph numbering restarts mid-judgment; the substantive text begins without a numbered introduction.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Nairobi County Occupational Safety and Health Services Officer (Directorate of Occupational Safety and Health Services); Kole (Exparte Applicant); Vimit Converters Limited (Interested Party) (Judicial Review Application E039 of 2023) [2024] KEELRC 2056 (KLR)", Case Analysis (2024). Notice of Motion dated 19.04.2024 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2056/eng@2024-07-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.