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ELRCPartially AllowedMiscellaneous Application No. E054 of 2024 (Machakos), consolidated with the ex-parte applicant's judicial review notice of motion dated 25.11.2024

Walala v Guardian Coach Limited; Directorate of Occupational Safety and Health Services (Respondent) (Judicial Review Application E065 of 2024 & Miscellaneous Application E345 of 2024 (Consolidated)) [2025] KEELRC 792 (KLR)

Employment and Labour Relations Court
14 March 2025
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employer that ignored the 60-day window to object to a DOSH workplace injury award must now pay Kshs. 2.27 million after its court challenge backfired.

What this practically means

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Executive summary

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The employee, a driver for Guardian Coach Limited, sustained injuries on 09.03.2023 resulting in 45% permanent incapacity of his right hand. DOSH assessed compensation of Kshs.2,271,230.77 on 07.08.2024 under sections 28 and 30 of the Work Injury Benefits Act based on the employer's own Form 1 notification and a medical assessment from Kenyatta National Hospital. The employer failed to object under section 51 of WIBA within 60 days. When the employee applied to adopt the award as a judgment of the Court under Miscellaneous Application No. E054 of 2024 (Machakos), the employer did not file a replying affidavit but instead obtained leave and filed judicial review proceedings seeking certiorari to quash the award, mandamus against DOSH, and prohibition against both the adoption proceedings and DOSH, alleging the injuries were self-inflicted in a scuffle with police and that it was denied an opportunity to appeal. The Court found the employer was fully aware of the award through the prescribed Form 4 and counsel's demand letter of 04.10.2024, and that its failure to object was of its own making. The Court held the judicial review application was a belated afterthought and a glaring abuse of process, calculated to defeat the statutory objection and appeal procedure under sections 51 and 52 of WIBA. Merits such as the cause of injury could only be examined on a section 52 appeal. Applying Manani J's decision in Joash Shisia Cheto, the Court held the case had not met the threshold for judicial review intervention. The DOSH award was adopted as a judgment of the Court, payable by 01.05.2025 with interest at Court rates thereafter, and the judicial review application was dismissed with costs against the employer.

Questions the Court framed

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

  1. 1.Whether the DOSH award of Kshs.2,271,230.77 dated 07.08.2024 should be adopted as a judgment of the Court
  2. 2.Whether the employer was aware of the DOSH award and failed to lodge an objection under section 51 of WIBA within 60 days
  3. 3.Whether the judicial review orders of certiorari, mandamus and prohibition sought by the employer should issue
  4. 4.Whether the judicial review application was an abuse of court process calculated to defeat the statutory WIBA objection/appeal procedure

Key legal issues

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01

Failure to lodge a timely objection under section 51 of WIBA

Holding

The employer was aware of the award through the prescribed Form 4 and the demand letter, and deliberately failed to lodge an objection within the 60-day window, which lapsed on or about 07.10.2024

Reasoning

The DOSH award was communicated on 07.08.2024 by the prescribed ML/DOSH/WIBA/FORM4. Counsel's demand letter of 04.10.2024 referenced the award and the employer never responded. The Court found, on a balance of probability, that the demand was delivered and that non-objection was the employer's own making.

p. 4
02

Abuse of court process via judicial review

Holding

The judicial review application was a belated afterthought, a misuse of process, and an attempt to bypass the statutory WIBA objection and appeal procedure

Reasoning

Rather than opposing the adoption application, the employer filed judicial review proceedings seeking certiorari, mandamus and prohibition against proceedings in the same court and against DOSH. The Court held this was calculated to defeat the sections 51 and 52 WIBA procedure and amounted to a glaring abuse of process.

p. 4
03

Limits of judicial review versus appeal under section 52 of WIBA

Holding

While judicial review may question procedural failures in WIBA implementation, the threshold was not met; merit issues like cause of injury and fairness of assessment are for a section 52 appeal only

Reasoning

Following Manani J in Joash Shisia Cheto, the Court accepted judicial review can address procedural failures but held the instant case did not pass the threshold. The Court declined to determine liability for the injury, noting WIBA is a no-fault system and the employer had reported the accident as expected.

p. 4
04

DOSH compliance with WIBA procedure

Holding

DOSH performed its statutory duties: the employer filed Form 1 reporting the accident, incapacity was assessed at 45% by a medical practitioner, and computation was done under sections 28 and 30 of WIBA

Reasoning

The replying affidavit of Justus Bosire Nyakegosworn showed the employer itself filed ML/DOSH Form 1 citing an accident, with no mention of self-infliction, and Form 2 completed by a KNH doctor showing 45% permanent incapacity. No objection was received in the prescribed form and no material suggested DOSH failed in its duties.

p. 4

Legal principles established

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  • WIBA institutes a no-fault compensatory system for occupational injuries, diseases and death; employers must follow and cooperate with WIBA processes including objections under section 51
  • Judicial review is not a vehicle to re-litigate the merits of a DOSH award where the statutory objection/appeal procedure under sections 51 and 52 of WIBA was not pursued
  • A DOSH assessment made under WIBA may be adopted as a judgment of the Employment and Labour Relations Court and enforced by decree

Court orders

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  1. 1.The assessment by DOSH dated 07.08.2024 in favour of Edwin Otsieno Walala in the sum of Kshs.2,271,230.77 is adopted as a judgment of the Court, payable by Guardian Coach Limited by 01.05.2025, failing which interest at Court rates from the date of filing the adoption application until full payment
  2. 2.Guardian Coach Limited to pay the applicant's costs of the adoption application
  3. 3.The judicial review application is dismissed with Guardian Coach Limited to pay costs of the respondent and interested party in that application
  4. 4.A decree to issue accordingly

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 50 and 162(2)(a) of the Constitution of Kenya 2010; section 12 of the Employment and Labour Relations Court Act; sections 26(4) and (6), 51 and 52 of the Work Injury Benefits Act; sections 1A, 1B and 3A of the Civil Procedure Act
Consolidated with
Judicial review notice of motion dated 25.11.2024 (Mose Nyambega & Company Advocates for Guardian Coach Limited)

Relief refused

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Order of certiorari to quash the DOSH award

The judicial review application was a belated afterthought and abuse of process; the employer failed to use the statutory objection under section 51 of WIBA

p. 4

Orders of mandamus and prohibition against DOSH and the Court

No material showed DOSH failed to perform its statutory duties; merit issues such as cause of injury are only for an appeal under section 52 of WIBA

p. 4

Costs

Guardian Coach Limited to pay the employee's costs of the adoption application, and the costs of the respondent and interested party in the dismissed judicial review application

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 application for judicial review is not only a belated afterthought to defeat the expeditious determination of the adoption and enforcement of award proceedings, but also a glaring abuse of Court process.
p. 4abuse of process
The employers must also be alert that WIBA institutes a no-fault compensatory system.
p. 4no-fault compensation under WIBA
This not being an appeal under section 52 of WIBA, the Court rejects the ex-parte applicant's invitation for the Court to deal with issues of merit such as the cause of the injury in issue, whether the assessment was fair
p. 4judicial review versus WIBA appeal
The assessment by DOSH dated 07.08.2024 in favour of Edwin Otsieno Walala in the sum of Kshs.2, 271,230.77 is hereby adopted as a judgment of the Court and the Guardian Coach Limited to pay the amount by 01.05.2025 failing interest to be payable thereon at Court rates from the date of filing the application for adoption of the award until full payment.
p. 5final orders - adoption of award
The judicial review application is dismissed with orders the Guardian Coach Limited to pay costs of the respondent and interested party in that application.
p. 5final orders - dismissal of judicial review

Issues in the judgment

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minor

The judicial review notice of motion is dated 25.11.2021 while the text says leave was obtained on 26.11.2024 and the application is dated 25.11.2024, indicating a typographical error in the year

minor

The employee's name appears inconsistently as Edwin Otsieno Walala and Edwin Otsieno Okoth Walala

minor

The DOSH replying affidavit is sworn on 21.02.2024, which predates the DOSH award of 07.08.2024 and the employer's application of 25.11.2024, suggesting a typographical error in the year

minor

An interested party is referenced in the costs order but is not identified or described anywhere in the judgment's narrative of parties

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, "Walala v Guardian Coach Limited; Directorate of Occupational Safety and Health Services (Respondent) (Judicial Review Application E065 of 2024 & Miscellaneous Application E345 of 2024 (Consolidated)) [2025] KEELRC 792 (KLR)", Case Analysis (2025). Miscellaneous Application No. E054 of 2024 (Machakos), consolidated with the ex-parte applicant's judicial review notice of motion dated 25.11.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/792/eng@2025-03-14

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