Samuel Khisa v Bluestone Limited

2 The Applicant avers that he was employed by the Respondent as a Helper and that, on or about 23 rd December 2022, he sustained amputated distal phalanges of the left index, middle and ring fingers and stiffness fractures while operating the Respondent’s machine in the course of his employment and while on duty at the Respondent’s premises. 3 The Applicant states that following the accident, the Respondent took him to Bristol Park Hospital, where he was admitted from 23rd December 2022 to 26th December 2022 and thereafter attended as an outpatient from 28 th December 2022 to 25th March 2023. He relies on the medical report from the said hospital. 4 It is the Applicant’s case that the Respondent reported the injury to the Directorate of Occupational Safety and Health Services (DOSH), whereupon a DOSH Form 1 was issued and duly completed by the Respondent and the attending doctor. 5 The Applicant further states that on 11 th January 2023, the Director of Occupational Safety and Health Services, through the Senior Occupational Safety and Health Officer, Athi River Sub-County, assessed the compensation due to him at Kshs. 283,475. 6 He avers that a Notice of the Award was subsequently issued through a Demand for Payment of Work Injury Benefit dated 1st March 2024. Page 2 of 12

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7 The Applicant asserts that despite being notified of the award, the Respondent refused, failed and/or neglected to pay the assessed compensation. 8 He states that he thereafter instructed his Advocates, Adoli and Company Advocates LLP, who issued a demand letter dated 26th February 2026, but the Respondent has to date failed and/or refused to compensate him. 9 The Applicant contends that the Respondent did not raise any objection to the award or lodge an appeal against it and, consequently, the sum of Kshs. 283,475 remains due and owing to him. 10 It is therefore the Applicant’s case that it is in the interests of justice for the application to be allowed to facilitate enforcement of the award by the Director of Occupational Safety and Health Services. Respondent’s Case 11 In opposition to the application, the Respondent filed a replying affidavit dated 21st May 2026, sworn by Sarika Patel. 12 The Respondent avers that the present Application is incompetent, misconceived, procedurally defective and an abuse of the process of the Court and ought to be dismissed with costs. 13 The Respondent avers that it was never served with any pleadings, notices, summons, assessment proceedings, hearing notices, notices of objection rights or any other Page 3 of 12

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process relating to the alleged proceedings before the Directorate of Occupational Safety and Health Services, culminating in the purported award dated 1st March 2024. 14 It states that it was therefore completely unaware of the existence, pendency or determination of the alleged proceedings. 15 It is the Respondent’s case that, as a result, it was denied an opportunity to participate in the proceedings, present evidence, challenge the Applicant’s allegations, interrogate the medical assessments, dispute liability and exercise its statutory right of objection and/or appeal against the purported assessment. 16 The Respondent assessment were asserts that the proceedings and conducted in violation its of constitutional right to a fair hearing under Article 50 of the Constitution and the rules of natural justice, particularly the principle of audi alteram partem. 17 It contends that no valid and enforceable award can arise from proceedings conducted without notice to and participation of an affected party. 18 The Respondent further avers that the Applicant has failed to demonstrate compliance with the mandatory provisions of the Work Injury Benefits Act, 2007 and the applicable procedural requirements before seeking adoption and enforcement of the alleged award. Page 4 of 12

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19 It states that the assessment is disputed both on liability and quantum and that it ought to be afforded an opportunity to challenge the same before any enforcement can issue. 20 The Respondent contends that the Court ought not to adopt or enforce an award whose procedural propriety, legality and validity are contested. It maintains that the Application is premature, bad in law and would unjustly condemn it unheard. 21 The Respondent states that at the hearing, it shall seek, inter alia, the setting aside and/or nullification of the purported assessment and award for want of due process and violation of its constitutional rights. It is therefore the Respondent’s case that the application ought to be dismissed with costs. Applicant’s Submissions 22 The Applicant submitted that he was involved in a workrelated accident on 23rd December 2022 while working at the Respondent’s premises, which accident was duly reported by the Respondent to the Directorate of Occupational Safety and Health Services (DOSH). 23 He further submitted that the Respondent filled and stamped the requisite DOSH forms, thereby initiating the process of investigation and assessment of compensation. 24 It is the Applicant’s submission that pursuant to Section 23 of the Work Injury Benefits Act, 2007 (WIBA), the Director Page 5 of 12

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is empowered to make inquiries into an accident and determine liability and compensation. He argued that upon considering the forms submitted by the Respondent and the medical report, the Director assessed the compensation due to him at Kshs. 283,475 on 1 st March 2024. 25 The Applicant submitted that the award has neither been challenged nor paid. He relied on Section 51(1) of WIBA, which provides that a person aggrieved by a decision of the Director may, within sixty days of the decision, lodge an objection with the Director. It was argued that the Respondent did not exercise this statutory right within the prescribed period and could not, therefore, use the present proceedings to introduce an objection outside the procedure and timelines stipulated by the Act. 26 On the Respondent’s contention that it was not involved in the proceedings before the Director, the Applicant maintained that the contention was untenable, since the process before DOSH was commenced by the Respondent itself when it reported the accident and completed the DOSH Form 1. He submitted that consequently, there was no basis for the Respondent to claim that it was unaware of the process leading to the assessment. 27 It was further submitted that the jurisdiction of this Court in the present proceedings had only been invoked for purposes of enforcing the award made by the Director and that the Court could not properly delve into matters falling Page 6 of 12

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within the statutory dispute-resolution mechanism under WIBA. 28 The Applicant argued that the Respondent had failed to utilise the forum provided by law to challenge the Director’s decision and was therefore estopped from raising such matters at the enforcement stage. 29 In support of the statutory dispute-resolution mechanism under WIBA, the Applicant relied on Law Society of Kenya v Attorney General & another [2019] eKLR, where the Supreme Court held: “……….a plain reading of section 16 of the Act would reveal that its intention is not to limit access to courts but to create a statutory mechanism where any claim by an employee under the Act is subjected, initially, to a process of dispute resolution starting with an investigation and award by the Director aforesaid and thereafter, under section 52 an appeal mechanism to the then Industrial Court. As we previously stated in Petition No 33 of 2018, Sammy Ndungu Waity v IEBC and 3 others [2019] eKLR; “Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.” 30 The Applicant submitted that it is common ground that there was a work injury accident which was subjected to Page 7 of 12

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the director’s inquiry in line with WIBA laws after which an award was issued. Despite there being no objection against the award by the Respondent, the same remains unpaid and as such the Applicant seeks the prayers in the Application in order to enforce the award. Respondent’s Submissions 31 The Respondent submitted that Articles 47 and 50 of the Constitution safeguard the right to fair administrative action and fair hearing and that, before an administrative assessment under WIBA could be adopted and enforced by the Court, the Court had to satisfy itself that the process leading to the assessment was procedurally fair and accorded with the rules of natural justice. 32 The Respondent argued that it has never been served with any pleadings, notices, summons, assessment proceedings, hearing notices or notice of its right to object to the assessment and was therefore unaware of the proceedings and their outcome. 33 The Respondent further submitted that the alleged nonservice deprived it of an opportunity to participate in the assessment, present evidence on liability, challenge the medical evidence, contest the assessment of incapacity and quantum, and exercise its statutory rights of objection and appeal. It contended that in the absence of proof of service and participation, enforcement of the assessment would amount to condemning the Respondent unheard. Page 8 of 12

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34 In support of the foregoing, the Respondent relied on Onyango Oloo v Attorney General [1986-1989] EA 456, where the Court of Appeal stated: “There is a presumption in the interpretation of statutes that rules of natural justice will apply…” 35 The Respondent submitted that the principle applied equally to administrative determinations under WIBA and that an administrative decision affecting a party’s rights and obligations could not properly be enforced where that party had not been afforded notice and an opportunity to be heard. 36 It was further submitted that the Applicant bore the burden of demonstrating compliance with the mandatory procedural requirements under WIBA. 37 The Respondent argued that although the Applicant had annexed the alleged DOSH assessment, he had not placed before the Court evidence of service of the assessment proceedings, notices inviting the Respondent to participate, notification of the assessment once made, notification of the available objection or appeal mechanisms, or proof that a due inquiry involving both parties had been undertaken. 38 It is the Respondent’s submission that the Applicant’s assertion that no objection or appeal had been lodged could not, in itself, establish the validity of the assessment, since a party could not reasonably be expected to object to or appeal against a determination of which it had no knowledge. Page 9 of 12

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39 It was therefore submitted that, before converting the administrative assessment into a judgment capable of execution, the Court had to be satisfied that the underlying process was lawful, procedurally fair and constitutionally compliant. 40 On the validity of the assessment, the Respondent submitted that the award was not an uncontested one, but a disputed assessment whose legality, validity and procedural propriety had expressly been challenged. 41 Relying on Onesmus Kipkoriri Towett v National Police Service Commission [2018] eKLR, which cited the Supreme Court’s decision in Judicial Service Comission v Mbalu Mutava & another [2015] eKLR, on the constitutional significance of fair administrative action under Article 47. The Respondent submitted that Article 47 subjects administrative action to constitutional standards, including the rule of law, human dignity, social justice, good governance, transparency and accountability. 42 The Respondent consequently argued that adoption of the assessment in the face of unresolved questions concerning service, participation and procedural fairness would risk endorsing a process that violated constitutional guarantees. 43 It is the Respondent’s submission that the Court, in exercising its judicial function, to exercise caution before converting an administrative assessment into an executable decree where the affected party maintained Page 10 of 12

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that it had never been afforded an opportunity to be heard. 44 It was further submitted that the Application was premature and offended the principle of audi alteram partem, as its effect would be to expose the Respondent to execution without an opportunity to challenge liability, quantum or the propriety of the assessment process. 45 The Respondent contended that where credible allegations of non-service and denial of participation had been raised, the interests of justice required the Court to decline adoption of the assessment and preserve its right to challenge the purported award through the appropriate legal processes. 46 The Respondent therefore submitted that the Applicant has failed to demonstrate that the DOSH assessment was arrived at in compliance with the Constitution, the principles of natural justice and the procedural safeguards under WIBA. 47 I have examined all the averment’s and submissions of the parties herein. From the documents presented in court, the respondents reported the accident involving the claimant to Dosh by filling Dosh form 1 dated 11/1/23. The assessment of the claimant was thereafter done and a medical report dated 23/2/24 done by one Dr Muoko. There is also evidence that on 1/3/24, the respondent was informed by Dosh of the assessment done through form Dosh/Wiba 4. On 26/2/26, the applicant counsel issued a Page 11 of 12

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demand notice to the respondents who still did not pay prompting the filing of this applicant in April 2026. 48 The averment by the respondents that they were not aware of the assessment and the results thereof is found without merit. I find the application merited and I allow it accordingly and adopt the award of the Director Dosh and enter judgment for the applicant to the tune of ksh 283,475/- plus costs and interest at court rates with effect from the date of this ruling. Dated, Signed and Delivered virtually at Nairobi this 23rd Day of September 2026. HELLEN WASILWA JUDGE Page 12 of 12

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