Allan Pascal Sali v Nairobi Sports House Limited

(c) That costs of the application be paid by the Respondent. 2. The application sets out on its face the grounds on which it is brought, and is based on the Applicant’s affidavit sworn on 16th January, 2026 in support of the application. It is deponed in the said supporting affidavit that the Applicant is an employee of the Respondent, that he on 13th November, 2021 sustained an injury (a deep cut) while working for the Respondent, DOSH/WIBA/FORM Director of was treated; and that 4 was subsequently filled by the Occupational DRAFT Safety and Health Services whereupon his permanent incapacity was assessed at 0% and compensation payable to him at Kshs.56,942.31; which the Respondent refused to pay. 3. Documents annexed to the said supporting affidavit include copies of duly filled and signed ML/DOSH FORM 1 dated 18th February, 2021 and ML/DOSH/WIBA/FORM 4 dated 19th February, 2021 respectively. RULING Nairobi ELRC Misc. Application No. E021 of 2026 2 of 8

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4. The Respondent opposed the application vide a replying affidavit of KASSAM A HARUNANI sworn on 9th February, 2026; disputing liability and contesting the amount of Kshs.56,942.31, stating that the same had been erroneously computed and was excessive. 5. The Applicant filed a further affidavit in response to the Respondent’s replying affidavit, sworn by himself on 24 th February, 2026. 6. I have noted from the documents referred to in paragraph 2 of this Ruling, and particularly DOSH/WIBA/FORM 4, that the Director of Occupational Safety and Health Services (the DRAFT Director) assessed the compensation payable to the Applicant on 19th February, 2021. A demand for payment of the assessed sum (Kshs.56,942.31) is shown to have been sent to the Respondent by the Director on the aforesaid date, requiring the Respondent to pay the assessed sum within ninety days of the demand. It was deponed by the Applicant that payment was not made. The Respondent now purports to dispute both liability and accuracy in computation of the sum awarded. RULING Nairobi ELRC Misc. Application No. E021 of 2026 3 of 8

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7. For record purposes, it ought to be noted that under the Work Injury Benefits Act (WIBA), determination of the issues of liability and assessment of compensation payable to employees who suffer work related injuries falls within the province of the Director. Section 23(1) of the said Act provides as follows:“(1) After having received notice of an accident or having learned that an employee has been injured in an accident, the Director shall make such inquiries as are necessary to decide upon any claim or liability in DRAFT accordance with this Act.” 8. Once the Director makes his decision on the aforesaid twin issues of liability and assessment of compensation payable to an injured employee or the estate of a diseased employee where death results from work injuries, any person and/or entity aggrieved by such decision can only challenge the same pursuant to Sections 51 and 52 of the WIBA. 9. Section 26(4) of WIBA provides as follows:- RULING Nairobi ELRC Misc. Application No. E021 of 2026 4 of 8

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“(4) An employer or insurer against whom a claim for compensation is lodged by the Director under this Section, shall settle the claim within ninety days of lodging of the claim.” 10. In the present case, failure by the employer (the Respondent) to pay the demanded sum within the statutory period of ninety days amounted to an offence pursuant to Section 26(6) of WIBA, and vested a civil cause of action on the Applicant regarding the assessed sum; which sum DRAFT then became the Applicant’s entitlement and/or right arising from an employer-employee relationship (contract of service between an employer and employee). By dint of Section 89 (formerly Section 90) of the Employment Act, the present suit ought to have been filed within three (3) years from the date of expiry of the ninety days’ period given to the Respondent by the Director to pay the assessed sum. The ninety days given by the Director lapsed on 19th May, 2021, while three (3) years from the said date lapsed on 19th May, 2024. RULING Nairobi ELRC Misc. Application No. E021 of 2026 5 of 8

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11. Section 89 (formerly Section 90) of the Employment Act provides as follows:“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” DRAFT 12. The present suit/application is shown to have been filed on 16th January, 2026, over one (1) year and seven (7) months from the date a cause of action accrued to the Applicant. The Application/suit was clearly filed out of time and is, therefore, statute-barred. 13. Orders sought by the Applicant would have issued had the suit been filed within the time prescribed by statute. This not being the case, this Court must down its tools, as it has no Jurisdiction to entertain statute-barred suits. RULING Nairobi ELRC Misc. Application No. E021 of 2026 6 of 8

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14. Consequently, the Notice of Motion dated 16 th January, 2026 is hereby struck off with no order as to costs. 15. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI DRAFT JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: RULING Nairobi ELRC Misc. Application No. E021 of 2026 7 of 8

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Mr. Masua for the Applicant Mr. Odongo for the Respondent DRAFT RULING Nairobi ELRC Misc. Application No. E021 of 2026 8 of 8

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