https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1456

Wanjala v Director of Occupational Safety & Health Services, Mombasa (Miscellaneous Application E112 of 2025) [2026] KEELRC 1456 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1456 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application E112 of 2025 K Ocharo, J May 28, 2026 Between Albert Kichichi Wanjala Applicant and Director Of Occupational Safety & Health Services, Mombasa Respondent Ruling 1.By an Application herein dated 26th September, 2025, the Applicant sought;a)That leave be granted to the Applicant to file an appeal out of time against the decision/award of the Director of Occupational Safety and Health Services, Mombasa, dated 21st July 2020, under Section 51 of the Work Injury Benefits Act.b)That pending the hearing and determination of the intended appeal, the enforcement and/or execution of the impugned award be stayed.c)That the costs of this application be provided for. Applicant’s Application. 2.The Applicant, Albert Kichichi Wanjala, seeks leave to file an appeal out of time against the assessment and award issued by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act. He states that he sustained severe burn injuries on 23 November 2018 while on duty at Nyali Beach Holiday Resort and was subsequently treated at Premier Hospital, Mombasa Hospital and Pandya Memorial Hospital. 3.The Applicant states that the employer reported the accident to the Directorate of Occupational Safety and Health Services on 17th July 2020 using a DOSH-1 form. The Director then assessed his permanent incapacity at 5% and awarded compensation of KShs. 356,300 on 21 July 2020. However, the Applicant contends that he was neither notified of the assessment nor involved in the process leading to the award, contrary to the rules of natural justice. 4.According to the Applicant, he never received compensation from either the employer or the insurer and only learned of the DOSH award after being sued by Pandya Memorial Hospital for unpaid medical bills. He states that, after instructing counsel and conducting due diligence, he discovered that the employer had reported the accident and that an award had already been issued. 5.The Applicant further states that he has since obtained a recent medical report from Coast General Teaching and Referral Hospital dated 3rd April 2025, which contradicts the previous DOSH assessment and indicates a greater extent of permanent incapacity. He acknowledges that the statutory sixty-day period for lodging an appeal under section 51 of WIBA has expired, but contends that the delay was neither deliberate nor intentional, having been caused by a lack of notification and awareness of the award. 6.The Applicant contends that, unless leave is granted, he will suffer grave prejudice and injustice, as he will be denied fair compensation for injuries sustained in the course of employment. He further argues that the Respondents will not suffer prejudice if an extension of time is granted, as they will still have an opportunity to respond to the intended appeal. The Applicant therefore urges the court to exercise its jurisdiction and discretion under Articles 48, 50 and 159 of the Constitution and to allow him to file the appeal out of time. Applicant’s written submissions 7.The Applicant submitted that he sustained severe burn injuries on 23 November 2018 while in the course of his employment at Nyali Beach Holiday Resort and that the employer reported the accident to the Director of Occupational Safety and Health Services almost two years later, on 17 July 2020, in violation of section 22(1) of the Work Injury Benefits Act. 8.The Applicant further submitted that the Director assessed his permanent incapacity at 5% and awarded compensation of Kshs. 356,300 on 21 July 2020, but he was never informed of the assessment process or the resultant award. According to the Applicant, he only discovered the award's existence after he was sued by Pandya Hospital in MSA MCCC E102 of 2024 for unpaid medical bills. 9.The Applicant submitted that upon conducting due diligence through counsel, he discovered that the employer had reported the accident and that an award had already been made without his participation or hearing. He further submitted that he subsequently obtained a fresh medical report from Coast General Teaching and Referral Hospital dated 3 April 2025, which contradicted the Director’s assessment and demonstrated a higher level of permanent incapacity. The Applicant therefore sought leave to lodge an objection out of time against the Director’s decision under section 51(1) of WIBA. 10.On jurisdiction, the Applicant submitted that the court is clothed with jurisdiction under article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act to determine employment and labour disputes, including disputes arising from decisions of the Director under sections 51 and 52 of WIBA. In support of that position, reliance was placed on Law Society of Kenya v Attorney General Another (2019) eKLR. 11.The Applicant further submitted that the employer’s delayed notification of the accident undermined the integrity of the Director’s assessment process and constituted an offence under section 22(4) of WIBA. It was argued that the Director’s decision was rendered in violation of the Applicant’s right to be heard and that the court should exercise its supervisory jurisdiction to remedy the injustice and ensure that statutory provisions are applied consistently with principles of natural justice and equity. 12.Reliance was also placed on Bakari v Spanish Coach Express Limited & another (misc application E109 of 2024) 2025KEELRC2351(KLR)(31 July 2025) (ruling). The Applicant submitted that the decision supported the proposition that statutory timelines should not be used to unjustly deny access to justice when delay is caused by circumstances beyond an employee’s control. 13.The Applicant additionally relied on Jared Ingling Obuya v Handicap International Cause No. 296 of 2018 (KLR). 14.On enlargement of time, the Applicant submitted that the power to extend time is discretionary and should be exercised judiciously. Reliance was placed on Thuita Mwangi v Kenya Airways Limited, civil appeal No. 162 of 2002. 15.The Applicant submitted that the delay in filing the objection was neither intentional nor due to indolence, but arose because he had never been notified of the Director’s assessment or award. According to the Applicant, the Respondent’s failure to notify him tainted the assessment process and rendered the resulting decision unlawful. It was further argued that the fresh medical report obtained by the Applicant demonstrated that the Director’s assessment had been made without full medical information and without affording the Applicant an opportunity to participate in the process. 16.The Applicant submitted that granting leave would not occasion prejudice to the Respondent because the Director would still have an opportunity to respond to the objection on its merits. Conversely, refusal to grant leave would irreparably prejudice the Applicant by denying him an opportunity to challenge the assessment. Reliance was also placed on Elijah Kisyanga Ndende v Manager Zahkem International Construction Ltd (2022) KEELRC 383 (KLR) 17.The Applicant therefore urged the court to find that he had satisfied the threshold for the grant of leave to object out of time and to exercise its discretion in favour of substantive justice. Analysis and determination 18.The issue for determination is whether the Applicant has established a sufficient basis for the grant of leave to file an objection and/or appeal out of time against the decision and assessment made by the Director of Occupational Safety and Health Services on 21 July 2020 under section 51 of the Work Injury Benefits Act. 19.The Applicant contends that he sustained severe burn injuries on 23 November 2018 while in the course of employment at Nyali Beach Holiday Resort and that the employer only reported the accident to the Director on 17 July 2020, almost two years after the occurrence of the accident. 20.According to the Applicant, the Director thereafter assessed his permanent incapacity at 5% and awarded compensation of Kshs. 356,300 on 21 July 2020 without notifying him or involving him in the assessment process. The Applicant further states that he became aware of the DOSH award only after he was sued by Pandya Memorial Hospital in MSA MCCC E102 of 2024 for unpaid medical bills. 21.The Applicant argues that the delay in lodging the objection was not deliberate but arose because he had never been notified of the Director’s decision. He further relies on a fresh medical report from Coast General Teaching and Referral Hospital dated 3 April 2025, which allegedly contradicts the earlier DOSH assessment and demonstrates a higher degree of permanent incapacity. 22.In Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR), the court relied on Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), where it was held that“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”. 23.In Law Society of Kenya v Attorney General Another (2019) KESC 16 (KLR), the court held that section 16 of the Work Injury Benefits Act does not oust or deny access to courts. The court held that the provision must be read together with sections 23 and 52 of WIBA, which establish a dispute resolution mechanism whereby work injury disputes are first determined by the Director and thereafter any aggrieved party may seek redress before the court through an appeal process. 24.The court therefore held that the requirement that disputes be first processed through the Director under WIBA constitutes an alternative dispute resolution mechanism and does not infringe the constitutional right of access to justice. 25.It is not disputed that the Director’s assessment and award were made on 21 July 2020 and that the statutory period of sixty days prescribed under section 51 of WIBA has long lapsed. However, the Applicant has explained that he was never notified of the assessment or involved in the process leading to the award. The Applicant further states that he became aware of the award only after being sued for unpaid medical bills in 2024. At this interlocutory stage, the court is not required to conclusively determine the truthfulness of the competing factual positions, but only whether the explanation offered is plausible and sufficient to justify the exercise of the court’s discretion. 26.Where an employee alleges a lack of notification and exclusion from the assessment process under WIBA, the court ought to lean in favour of affording them an opportunity to ventilate the grievance on merits, particularly where the dispute concerns compensation for injuries allegedly sustained in the course of employment. The allegation that the Applicant was neither informed of nor involved in the assessment process raises questions touching on procedural fairness and the right to be heard. 27.Without making definitive findings on the merits of the intended objection, I am satisfied that the intended challenge is not frivolous and raises arguable issues deserving consideration. 28.As regards prejudice, the Respondents have not shown any prejudice that cannot be compensated by costs or addressed by participation in the intended proceedings. By contrast, refusing to extend the time would permanently bar the Applicant from challenging the assessment, despite his assertion that he was unaware of its existence until much later. In the circumstances of this case, the interests of substantive justice favour allowing the Applicant an opportunity to pursue the intended objection. 29.In the upshot, the Applicant’s application is hereby allowed;a.He is granted leave to file an objection against the Director’s award, pursuant to the provisions of Section 51 of the Work Injury Benefits Act, within 15 days of the date of this ruling.b.In view of the foregoing, the enforcement of the Director’s award sought to be objected to is hereby stayed.c.This file is marked closed. READ, SIGNED, AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE.