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ELRCPartially AllowedNot stated in judgment

Omari v Kenya Ports Authority (Miscellaneous Application E025 of 2025) [2025] KEELRC 1068 (KLR)

Employment and Labour Relations Court
3 April 2025
950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that ignored a worker injury compensation award for Ksh. 3.79 million must now pay it in full, because it never legally objected.

What this practically means

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Executive summary

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The applicant, an employee of the respondent engaged as a Harbor Foreman, sustained a work-related injury on 28 December 2022. DOSH assessed the injury at 40% permanent incapacity and, on 2 November 2023, notified the respondent to pay Ksh. 3,792,227.73 in compensation. No objection or appeal was filed under Sections 52(1) or 52(2) of the Work Injury Benefits Act. The applicant moved the court by application dated 14 February 2025 seeking adoption of the DOSH award as the judgment of the court, with interest and costs. In reply, the respondent's insurer (M/s Jubilee Allianz Insurance Company Limited) asserted that the dispute was settled: the respondent had obtained a second medical assessment by Dr. Salim K. Noorani on 15 November 2023, which assessed incapacity at 20%, and had compensated the applicant Ksh. 1,997,475 via a payment voucher. The court held that the employer could not unilaterally adopt a second assessment outside the statutory objection and review machinery administered by DOSH; the second assessment was never submitted to DOSH for reconciliation. Further, the payment voucher exhibited was not issued to the applicant and a voucher is not final evidence of transmission of funds. The court found the award of Ksh. 3,792,227.73 unsettled and due, allowed the application, adopted the DOSH award of 2 November 2023 as its judgment, and ordered the respondent to pay within 30 days, failing which costs would accrue from the date of judgment. Delivered at Malindi on 3 April 2025 by M. Mbarũ, Judge.

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 2 November 2023 for Ksh. 3,792,227.73 should be adopted as the judgment of the court
  2. 2.Whether the respondent settled the award through a second assessment by Dr. Salim K. Noorani and payment of Ksh. 1,997,475
  3. 3.Whether an employer may unilaterally obtain a second medical assessment outside the objection and appeal machinery in Section 52 of WIBA and Section 23 inquiries

Key legal issues

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01

Enforceability of an unsatisfied DOSH award as a judgment of the court

Holding

The DOSH award of 2 November 2023 was adopted as the judgment of the court for Ksh. 3,792,227.73, since no objection or appeal was filed within the statutory machinery under Section 52 of WIBA.

Reasoning

The court found that the DOSH award was issued and notice given to the respondent, who neither objected nor appealed under Sections 52(1) and 52(2) of WIBA. The employer's unilateral second assessment by Dr. Noorani was never submitted to DOSH for reconciliation and review. Absent any statutory objection, the award remained due and enforceable, warranting adoption as the court's judgment.

p. 2
02

Whether the respondent proved payment or part payment of the award

Holding

The court found no evidence of payment or part payment; the payment voucher exhibited was not for the applicant and a voucher is not proof of transmission of funds.

Reasoning

The respondent alleged settlement via a payment voucher of Ksh. 1,997,475 based on a reduced 20% incapacity assessment by Dr. Noorani. The court observed that the attached voucher dated 13 February 2024 was not in the applicant's favour and that a payment voucher is not final evidence of transmission of funds. The award of Ksh. 3,792,227.73 therefore remained unsettled.

p. 3

Legal principles established

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  • An employer aggrieved by a DOSH award must file an objection or appeal under Section 52(1) or 52(2) of WIBA; it cannot unilaterally adopt a second medical assessment outside the statutory process
  • Compensation for work-related injuries can only arise under WIBA; Section 16 of WIBA is mandatory and excludes liability outside the Act

Court orders

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  1. 1.The application dated 14 February 2025 is allowed
  2. 2.The sum of Ksh. 3,792,227 being the Director's award made on 2 November 2023 is awarded
  3. 3.The respondent shall pay within 30 days from the date of the judgment, after which the same shall accrue costs from the date of the judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Enforcement of an award under the Work Injury Benefits Act (WIBA), in particular Sections 16, 23 and 52 of WIBA

Relief refused

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Interest on the award compounded annually at court rates from the date of the award until payment in full

The court instead provided that costs accrue from the date of judgment if payment is not made within 30 days; the interest prayer was not expressly granted in the final orders

p. 3

Costs

The judgment provides that if the respondent fails to pay within 30 days, costs shall accrue from the date of the judgment; no other express costs order was made.

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 dated 14 February 2025 is hereby allowed. The following orders are hereby issued;
p. 3Disposition
The sum of Ksjh.3,792,227 being the Director’s award made on 2 November 2023 is hereby awarded;
p. 3Adoption of DOSH award as judgment
The respondent shall pay within 30 days from the date hereof, after which the same shall accrue costs from the date of the judgment.
p. 3Payment timeline and costs
Upon the DOSH's assessment, an aggrieved employer is allowed to file objections or an appeal under the provisions of Section 52(1) or file an appeal to the court under Section 52(2) of the WIBA.
p. 2Statutory challenge mechanism

Issues in the judgment

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minor

The citation treatment of Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) is ambiguous: it appears in a paragraph that reads as the court's own reasoning, but the passage is phrased as supporting propositions 'as held in' earlier authorities; recorded as court-cited.

minor

The judgment does not state the case number, neutral citation, or the parties' names, using only 'applicant' and 'respondent'.

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, "Omari v Kenya Ports Authority (Miscellaneous Application E025 of 2025) [2025] KEELRC 1068 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1068/eng@2025-04-03

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