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ELRCPartially AllowedMotion dated 10 November 2023 (claim filed 15 November 2023)

Lusaka v Lachlan Kenya Ltd (Miscellaneous Application E265 of 2023) [2025] KEELRC 794 (KLR)

Employment and Labour Relations Court
13 March 2025
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an injured employee Kshs 14.6 million after his employer missed the 60-day deadline to object and a separation agreement did not waive work injury compensation.

What this practically means

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Executive summary

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The applicant, an employee of the Respondent, was injured in the course of work and moved the Court by a Motion dated 10 November 2023 seeking adoption of the Director of Occupational Safety and Health Services assessment as a judgment of the Court, a decree of Kshs 14,599,469/- with interest, a declaration that the Respondent committed an offence under section 26(6) of the Work Injury Benefits Act, and committal of the Respondent's Directors. The Respondent opposed, alleging fraud in the accident report, a discharge through a Separation Agreement, want of representations before assessment, and inconsistencies in documents. The Court stayed proceedings pending determination of an objection the Respondent claimed to have lodged with the Director, but the Director confirmed by letter dated 10 December 2024 that no objection was lodged as envisaged under section 51(1). The Court found the Respondent had a statutory duty to report the accident, that the Separation Agreement addressed only final dues and did not waive statutory compensation, that the Respondent reported the accident through the online platform and was notified of the award by email on 28 September 2022, and that allegations of forgery were unsubstantiated. Allowing the Motion, the Court adopted the DOSH assessment dated 28 September 2022, ordered a decree of Kshs 14,599,469/- with interest from the date of the award, and awarded costs to the applicant. The declaration and committal prayers were not granted in the final orders.

Questions the Court framed

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

  1. 1.Whether the Respondent discharged its statutory duty to report the accident under section 21 of the Work Injury Benefits Act
  2. 2.Whether the Separation Agreement and discharge voucher waived the applicant's statutory right to compensation
  3. 3.Whether the Respondent lodged a valid Objection under section 51(1) within the prescribed 60 days after notification of the award
  4. 4.Whether the allegations of forgery and discrepancies in documents defeated the DOSH assessment
  5. 5.Whether the Motion dated 10 November 2023 should be allowed

Key legal issues

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01

Whether the Separation Agreement discharged the Respondent from liability for statutory compensation

Holding

The discharge challenge failed because the agreement concerned resignation and final dues, not statutory compensation

Reasoning

The Court held that the Separation Agreement dated 14 June 2023 dealt with the applicant's resignation and payment of final dues. Compensation under the Work Injury Benefits Act is a statutory entitlement and cannot be characterised as final dues. Nothing in the agreement indicated the applicant waived his statutory right to compensation for injuries sustained in the course of work.

p. 3
02

Whether the Respondent lodged a valid and timely Objection to the DOSH assessment

Holding

No valid objection was lodged within the prescribed timelines; the Director confirmed no objection was lodged as envisaged under section 51(1)

Reasoning

The Director notified the Respondent of the award on 28 September 2022 through email based on the online reporting platform. The Respondent did not object within the prescribed 60 days. The letter dated 6 May 2024 sought extension of time and the Director confirmed the Objection was not lodged within prescribed timelines. The Respondent could not feign ignorance of the award.

p. 3
03

Whether allegations of forgery and document discrepancies defeated the assessment

Holding

The forgery and discrepancy allegations were unsubstantiated and did not detract from the fact of the accident

Reasoning

Despite contending forgery of the Administrative Assistant's signature, the Respondent did not produce an affidavit from that officer. No admissible evidence showed forgery of medical records or that AAR Hospital disowned the report. Discrepancies in the Police Abstract and DOSH Form 1 on time of accident did not detract from the fact that an accident occurred and the Respondent and insurers were promptly informed.

p. 3

Legal principles established

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  • Compensation due under the Work Injury Benefits Act is statutory and cannot be categorised as final dues waivable through a separation agreement
  • Failure to lodge an objection within the prescribed 60 days after notification of an award precludes the employer from contesting the assessment

Court orders

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  1. 1.The Court adopts the assessment of the Director of Occupational Safety and Health Services dated 28 September 2022
  2. 2.A decree for Kshs 14,599,469/- to issue in accordance with the assessment of the Director of Occupational Safety and Health Services against the Respondent together with interest from the date the award was granted
  3. 3.The applicant to have costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Work Injuries Benefits Act, including sections 21, 26(6) and 51(1)

Relief refused

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Declaration that the Respondent committed an offence contrary to section 26(6) of the Work Injury Benefits Act and committal of the Directors to one year in jail or a fine of Kshs 500,000/- or both

The final orders did not grant prayers (iii) and (iv) of the Motion; only adoption of the assessment and issuance of the decree with interest were ordered

p. 4

Costs

The applicant to have costs.

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 compensation due under the Work Injury Benefits Act is circumscribed under the Act and the award cannot by the stretch of imagination be categorised as final dues.
p. 3Statutory compensation not waivable by separation agreement
The Respondent did not make an Objection within the prescribed 60 days after notification of the award through email/online platform and it cannot feign ignorance that an award had been made.
p. 3Time limits for objection to DOSH award
That the Honourable Court hereby adopts the assessment of the Director of Occupational Safety and Health Services dated 28 September 2022.
p. 4Final orders - adoption of assessment
That a decree for Kshs 14,599,469/- to issue in accordance with the assessment of the Director of Occupational Safety and Health Services against the Respondent together with interest from the date the award was granted.
p. 1Final orders - decree and interest

Issues in the judgment

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minor

The judgment states the accident occurred on 19 September 2022 in the Motion grounds but the Managing Director's affidavit is said to admit the applicant informed him on 19 September 2021

minor

The assessment figure is stated as Kshs 14,599,468/- in the grounds but Kshs 14,599,469/- in the relief sought and in the final orders

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, "Lusaka v Lachlan Kenya Ltd (Miscellaneous Application E265 of 2023) [2025] KEELRC 794 (KLR)", Case Analysis (2025). Motion dated 10 November 2023 (claim filed 15 November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/794/eng@2025-03-13

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