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ELRCDismissedMemorandum of Appeal dated 26th March 2025· [2025] KEELRC 2508 (KLR)

Hassen v Kithaka (Appeal E089 of 2025) [2025] KEELRC 2508 (KLR)

Employment and Labour Relations Court
26 September 2025
JKJ.W. Keli
3,854 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed that magistrates can enforce workplace injury awards assessed by the Director of Occupational Safety when the amounts fall within their limits.

What this practically means

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Executive summary

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The Appellant appealed against the ruling of Hon. L. Ambasi (CM) delivered on 17th March 2025 in MCELRC Miscellaneous Application E002/2025, in which the trial Magistrate dismissed the Appellant's preliminary objection challenging jurisdiction and allowed the Respondent's Notice of Motion seeking adoption as an order of the court of an assessment of Kshs. 299,520 made by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act. The appeal was canvassed by written submissions. The sole issue framed was whether the trial court had jurisdiction to adopt the DOSH assessment. The Respondent argued the award fell within the Magistrate's pecuniary jurisdiction; the Appellant relied on authority, notably Wambui v Kheis Industries, contending magistrates have not been gazetted to enforce DOSH orders. Guided by Selle v Associated Motor Boat Co. and Mbogo v Shah, the Court noted the lacuna in WIBA on enforcement of the Director's awards, and that the Court of Appeal in Charles v Cheto had endorsed the ELRC's jurisdiction under Article 162(2) while recording the general principle that magistrates may adopt DOSH awards where pecuniary jurisdiction allows. The Court held that the Court of Appeal did not overrule that principle, that the award was within the Magistrate's pecuniary jurisdiction, and that the Appellant, having raised only a preliminary objection on jurisdiction below, could not raise other issues on appeal. Not satisfied the Magistrate's decision was clearly wrong, the Court dismissed the appeal, upheld the ruling with costs to the Respondent.

Key legal issues

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01

Jurisdiction of the Magistrate's Court to adopt DOSH awards

Holding

The trial Magistrate had jurisdiction to adopt the DOSH assessment of Kshs. 299,520 as an order of the court, since the amount was within her pecuniary jurisdiction and the Court of Appeal in Cheto v Charles did not disturb the general principle that magistrates may enforce the Director's awards where pecuniary jurisdiction allows.

Reasoning

WIBA is silent on the procedure for enforcing the Director's award. The Court of Appeal in Cheto v Charles endorsed that the ELRC may be moved under Article 162(2) and Section 12 of the ELRC Act, noting a minority view that magistrates may adopt awards within their pecuniary jurisdiction. This Court found the Court of Appeal did not overrule that principle; the Magistrate applied a decision upheld on appeal and the award fell within her pecuniary limits.

p. 8
02

Standard of appellate interference

Holding

Applying Mbogo v Shah, the appellate court will not interfere with the trial court's discretion unless satisfied the decision is clearly wrong.

Reasoning

The appeal attacked the Magistrate's ruling on the preliminary objection. Guided by Mbogo v Shah and Selle v Associated Motor Boat Co., the Court found the Magistrate neither misdirected herself nor acted on extraneous matters, and dismissed the appeal.

p. 8

Legal principles established

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  • Where pecuniary jurisdiction allows, a Magistrate's Court may adopt and enforce an award of the Director of Occupational Safety and Health Services, the enforcement procedure under WIBA being a lacuna.
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong.

Court orders

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  1. 1.The Ruling and Order of the Hon. L. Ambasi (CM) delivered on 17th March, 2025 in MCELRC Miscellaneous Application number E002/2025 is upheld
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
Magistrate's Court (Nairobi, ELRC)
MCELRC Miscellaneous Application E002/2025
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over decisions of subordinate courts in employment and labour relations matters (Article 162(2) Constitution; Employment and Labour Relations Court Act)

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, "Hassen v Kithaka (Appeal E089 of 2025) [2025] KEELRC 2508 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 26th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2508/eng@2025-09-18

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