Luseno v China Communicaion & Contruction Company Limited (Miscellaneous Application E135 of 2023) [2024] KEELRC 2326 (KLR)
The bottom line
#Kenya's Employment Court confirmed it will enforce an unchallenged DOSH work injury award in full, and employers cannot dodge payment by raising objections too late.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of a DOSH award against a reluctant employer
The ELRC can be moved, in miscellaneous/summary form, to enforce the Director's award as a judgment of the court.
The court adopted the position in Joash Shisia Cheto v Thepot Patrick Charles that WIBA provides no mechanism for enforcing the Director's award, creating a lacuna. The holder may invoke the ELRC's jurisdiction under Article 162 of the Constitution read with section 12 of the ELRC Act, and such proceedings may be by way of miscellaneous causes confined to enforcement only.
Validity of the revised DOSH evaluation reducing compensation to Kshs 686,145/-
The revised evaluation could not stand because it was based on an erroneous medical report referring to injuries the Applicant did not sustain and was disowned by DOSH.
The court noted the revised evaluation referred to injuries to the right lower limbs and knee, whereas the Applicant injured his left leg. The Director's letter of 27th October, 2022 disowned the evaluation as erroneous. A reduction founded on an erroneous medical report could not stand against the unappealed 2nd July, 2020 assessment.
Whether the Respondent could dispute the award absent objection or appeal
Having filed no objection within 60 days and no appeal under section 52 WIBA, the Respondent could not challenge the award, and the issues raised in the Replying Affidavit could not be substantiated.
The court held that the Respondent's remedy was to lodge an objection within 60 days under section 51 WIBA and, if unsatisfied, to appeal under section 52. None was preferred, nor had the Respondent set aside or stayed the award. The issues raised in the Replying Affidavit therefore could not be substantiated and the Applicant should enjoy the fruits of the assessment.
Legal principles established
#- An unchallenged DOSH award must be objected to within 60 days and, absent objection or appeal, the court will enforce it as judgment without revisiting the merits.
- The court on enforcement of a Director's award cannot consider the merits of the award; that jurisdiction is the preserve of the Director, subject to appeal under section 52 WIBA.
Court orders
#- 1.The Director's award of 2nd July, 2020 adopted as decree of the court
- 2.Judgment entered for the Applicant for the outstanding balance of Kshs 1,162,270/-
- 3.The award to attract interest at court rates from the date of the award until payment in full
- 4.Costs awarded to the Applicant
- Jurisdiction invoked
- Article 162 of the Constitution as read with section 12 of the ELRC Act (enforcement of DOSH award under WIBA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luseno v China Communicaion & Contruction Company Limited (Miscellaneous Application E135 of 2023) [2024] KEELRC 2326 (KLR)", Case Analysis (2024). Miscellaneous Application dated 21st June, 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2326/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.