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ELRCPartially AllowedNot stated in the judgment

Timsales Limited v Director of Occupational Safety and Health; Mburu (Interested Party) (Appeal E054 of 2024) [2025] KEELRC 1626 (KLR)

Employment and Labour Relations Court
30 May 2025
917 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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Kenya's Employment and Labour Relations Court ruled the occupational safety Director shouldn't be sued in work injury appeals, but the appeal itself survived.

What this practically means

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Executive summary

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The Interested Party, a worker injured while employed by the Appellant, was granted work injury compensation by the Director, Occupational Safety and Health under the Work Injury Benefits Act. The Appellant's objection under the Act was declined, and it lodged an appeal to the Employment and Labour Relations Court under Section 52(2) of the Act, naming the Director as Respondent. The Interested Party applied by notice dated 29th November 2024 for the Appeal to be struck out, arguing that the Director was the decision-maker, not a party to the dispute, and could not be hauled before the Court to defend his own decision; the Appeal was an abuse of the appellate jurisdiction. The Appellant countered that the Director was a primary party required to respond to the Appeal, while the Interested Party, though a stakeholder, was not the decision-maker. The Court agreed with the Interested Party. Sections 51 and 52 of the Act create a procedure in which the Director makes an award and determines objections but nowhere becomes a party to the dispute; the E&LRC (Procedure) Rules 2024 likewise distinguish party from decision-maker, and no express provision of WIBA makes the Director a party on appeal. An appeal is not judicial review, where the decision-maker is normally joined. However, the Court declined to strike out the Appeal: the only flaw was the misjoinder, curable by amending the Memorandum of Appeal to remove the Director and name the Interested Party as Respondent. The Court granted the Appellant 14 days to file and serve an amended Memorandum of Appeal and made no order on costs.

Questions the Court framed

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

  1. 1.Whether the Director, Occupational Safety and Health, as decision-maker under the Work Injury Benefits Act, is properly joined as a party to the Appeal
  2. 2.Whether the Appeal should be struck out on account of the improper joinder

Key legal issues

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Whether the Director, Occupational Safety and Health is properly a party to an appeal under Section 52 of the Work Injury Benefits Act

Holding

The Director is improperly joined; he is a decision-maker who must remain above the fray, and only express provision in written law could make him a party to the appeal

Reasoning

Sections 51 and 52 of WIBA establish a procedure in which the Director makes an award, hears objections, and may vary or uphold his decision, with appeal lying to the E&LRC. Nowhere in that procedure does the Director become a party. The E&LRC (Procedure) Rules 2024 define an appeal against decisions of decision-makers, distinguishing party from decision-maker. Judicial or quasi-judicial officers should not be dragged into disputes they preside over; had the legislature intended the Director to be a party, it would have said so expressly.

p. 2
02

Whether the Appeal should be struck out for misjoinder of the Respondent

Holding

Striking out refused; the defect is curable by amendment naming the Interested Party as Respondent

Reasoning

The Court found only one flaw: the Director was wrongly named as a party. The Interested Party, who should have been named as Respondent, is already a participant in the Appeal, and there were no other noticeable procedural flaws leading to presentation of the Appeal. The Appeal need only be amended to strike out the Respondent and name the Interested Party as Respondent, with 14 days granted to file an amended Memorandum of Appeal.

p. 3

Legal principles established

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  • A decision-maker under the Work Injury Benefits Act does not become a party to an appeal against his own decision absent express statutory provision
  • An appeal is not judicial review; the decision-maker is not normally named as a party on appeal

Court orders

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  1. 1.The Court agrees with the Interested Party / Applicant, that the Director, Occupational Safety and Health is improperly joined to the Appeal
  2. 2.The Appellant is granted 14 days to file and serve an amended Memorandum of Appeal
  3. 3.No order on the costs

The bench

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

majority

Wrote the judgment

On appeal from
Director, Occupational Safety and Health (statutory decision under WIBA)
Jurisdiction invoked
Section 52(2) of the Work Injury Benefits Act

Relief refused

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Striking out of the Appeal

The improper joinder could be cured by amendment; the Interested Party, who should have been the Respondent, is already a participant and there were no other procedural flaws

p. 3

Costs

No order on the 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 Court agrees with the Interested Party / Applicant, that the Director, Occupational Safety and Health is improperly joined to the Appeal.
p. 3Final orders - improper joinder of decision-maker
We cannot have judicial or quasi-judicial oficers dragged into the subject matter of the disputes they preside over.
p. 2Rationale for excluding decision-makers from appeals
The Appellant is granted 14 days to file and serve an amended Memorandum of Appeal.
p. 3Final orders - leave to amend
No order on the costs.
p. 3Final orders - costs

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, "Timsales Limited v Director of Occupational Safety and Health; Mburu (Interested Party) (Appeal E054 of 2024) [2025] KEELRC 1626 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1626/eng@2025-05-30

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