https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12760

Dungani v Director of Occupational Safety and Health Services & 3 others (Judicial Review E015 of 2023) [2026] KEHC 12760 (KLR) (7 August 2026) (Judgment) Neutral citation: [2026] KEHC 12760 (KLR) Republic of Kenya In the High Court at Mombasa Judicial Review E015 of 2023 J Ngaah, J August 7, 2026 Between Basille Azango Dungani Applicant and Director of Occupational safety and Health Services 1st Respondent Mega Apparel Industries Kenya (EPZ) Limited 2nd Respondent The Hon Attorney General 3rd Respondent and Office of the Ombudsman Interested Party Judgment 1.Before the court is the applicant's Notice of Motion brought under Order 53 rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act (Cap 26). Leave to institute these proceedings having earlier been granted, the applicant now moves for substantive judicial review relief in the following terms: (a) an order of mandamus to compel the 1st respondent to discharge its duties "as provided for under section 53(d) and (e)" of the Work Injury Benefits Act, 2007; (b) an order of mandamus to compel the 1st respondent, through its Director, to issue an award of compensation to the applicant premised on Part E and F of the First Schedule and on the Third Schedule to the Act; and (c) costs. 2.The gist of the application is short. The applicant, a workman, says he was injured in the course of his employment with the 2nd respondent, that jurisdiction to investigate and determine his claim for work injury benefits is vested by statute in the 1st respondent, and that the 1st respondent has failed, refused and neglected to perform that duty, choosing instead to defer to the pendency of a separate employment dispute. He asks the court to compel the 1st respondent to act and to compensate him. Background 3.The applicant was employed by the 2nd respondent in its boiler section. His case is that on or about 13th September 2020, while descaling boilers with hydrochloric acid (HCL 33%), he sustained chemical injuries to the eyes and nose, leading to reduced visual acuity, keratoconjunctivitis, rhinitis, sinusitis and recurrent nasal obstruction. He was treated as an outpatient at the Coast General Teaching and Referral Hospital and at Lions Eye Hospital. His services with the 2nd respondent came to an end in October 2020. 4.A medical examination report from a hospital referred to as “My Clinic” dated 16th February 2022 assessed the applicant's permanent incapacity, in consideration of the prognostic outcome of the injury, at fifteen percent (15%). 5.The applicant first pursued the matter as an employment claim against the 2nd respondent (Employment and Labour Relations Cause No. 5 of 2021) in the Chief Magistrate's Court at Mombasa. Following the decision of the Supreme Court in Law Society of Kenya v Attorney General & another (Petition No. 4 of 2019) [2019] KESC 16 (KLR), his then advocates, Messrs. Thabit, Wampy & Kitonga, wrote to the 2nd respondent on 28th April 2021 stating that, by dint of sections 16 and 23 of the Work Injury Benefits Act, 2007 (WIBA), jurisdiction to hear and determine work injury claims was vested in the Director of Occupational Safety and Health Services, and that they were handing the matter over to that office. 6.The 1st respondent thereafter took up the matter. By a demand letter dated 12th May 2021 it required the 2nd respondent to complete the prescribed accident notification (DOSH 1) form, or to explain in writing within seven days why the alleged accident had not been reported. By letter dated 19th June 2021 the 2nd respondent denied that the applicant had been injured at the workplace, asserting that he had absconded from duty, that his work was confined to feeding wood to the boiler (descaling being outsourced to a contractor and undertaken only during the annual Christmas shutdown), and that no injury involving him was recorded in its accident/general register. The 1st respondent wrote again on 29th June 2021 seeking further particulars, and in the course of its inquiry recorded statements from the 2nd respondent's boiler supervisor. 7.Aggrieved by the delay, the applicant complained to the Office of the Ombudsman (the Commission on Administrative Justice), the interested party, which inquired into the alleged delay by letter dated 13th July 2022. The 1st respondent responded on 19th August 2022 setting out the status of the matter. Upon learning that the matter was the subject of court proceedings, the interested party advised the applicant that it was precluded from inquiring further. 8.The applicant's claim for work injury benefits remains undetermined to date. Hence this application. The applicant's case 9.The applicant's case, as deposed in his verifying affidavit, particularised in his statement under Order 53, and developed in his written submissions dated 5th September 2025, may be summarised as follows. First, that the 1st respondent is under a mandatory statutory duty under WIBA (in particular sections 16, 23 and 26) to receive notice of accidents, to investigate them, and to determine compensation, jurisdiction over work injury claims being vested exclusively in the Director. Secondly, that the Director had actual knowledge of his accident, both from the correspondence and from the interested party's inquiry, yet declined to process the claim, deferring instead to the pendency of the employment matter, which amounts to an unlawful abdication of statutory duty. Thirdly, that the employment claim is a wholly distinct cause of action which neither ousted nor suspended the Director's WIBA jurisdiction. Fourthly, that he has been left incapacitated and without remedy, and that mandamus is the only efficacious relief available to him. The responses and the preliminary objection 10.The 1st respondent opposed the application through the replying affidavit of Bernard Simiyu, the County Occupational Safety and Health Officer, Mombasa, sworn on 14th March 2025. In substance, the 1st respondent's position is that, under WIBA, the process is triggered by the employer's report of the accident on the prescribed DOSH 1 form (Part I to be completed by the employer, and Part II, the medical report, by the primary attending medical practitioner), and that compensation can neither be computed nor awarded until those are furnished. It was deposed that the 2nd respondent denied the accident and declined to complete the DOSH 1 form, and that the applicant's own medical report emanates from a private clinic rather than from the prescribed process. The 1st respondent maintained that it did not fail to attend to the applicant: it wrote to the employer on the very day the applicant reported (12th May 2021), engaged the employer during the investigation, and kept the applicant updated. It contended that the application is premature, frivolous and an abuse of the process of the court, in that it asks the court to compel the Directorate to disregard the statutory scheme. 11.The 3rd respondent, the Honourable Attorney General, raised a preliminary objection contending that: (i) the suit is premature by dint of section 52(1) and (2) of WIBA, the applicant having failed first to invoke the objection and appeal mechanism; (ii) the claim is time-barred under section 26(1) of WIBA; and (iii) this court lacks jurisdiction. 12.The interested party, the Commission on Administrative Justice, responded through the replying affidavit of Mercy K. Wambua, its Commission Secretary and Chief Executive Officer, sworn on 26th March 2025. Its position is that it received the applicant's complaint of delay, initiated an inquiry by writing to the 1st respondent, but, upon being informed that the matter was the subject of court proceedings, was constrained by section 30(d) of the Commission on Administrative Justice Act, 2011 from inquiring further, and that it defers to the court's determination of the merits. 13.The 2nd respondent did not file a formal response to the substantive motion. Its position, however, is fully apparent from the correspondence and the defence statement annexed to the parties' affidavits, and I have had regard to it. Issues for determination 14.Having considered the pleadings, the affidavits and the submissions, the following issues fall for determination:(a)whether the preliminary objection succeeds, that is, whether the application is premature under section 52 of WIBA, time-barred under section 26(1) of WIBA, or otherwise beyond the jurisdiction of this court;(b)whether the 1st respondent is under a clear statutory duty which it has failed or refused to perform;(c)whether the pendency of a separate employment claim ousted or suspended that duty;(d)whether an order of mandamus should issue and, if so, in what terms; and(e)costs. Analysis and determination (a) The preliminary objection 15.It is convenient to dispose of the preliminary objection first, for if it were to succeed it would be dispositive of the whole application. The law is settled that a preliminary objection must raise a pure point of law argued on the assumption that the facts as pleaded are correct; it cannot be raised where the facts are contested or where the point sought to be argued calls for evidence (see Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696). 16.On prematurity, section 52 of WIBA is headed "Objections and appeals against decisions of the Director." It affords a person aggrieved by a decision of the Director a right of objection and, thereafter, of appeal to the Employment and Labour Relations Court. Its constitutionality was upheld by the Supreme Court in Law Society of Kenya v Attorney General & another (supra). But, by its plain terms, the section presupposes the existence of a decision of the Director capable of being objected to or appealed against. Here there is none. The Director has neither awarded the applicant's claim nor, on the merits, refused it; he has merely held it in abeyance. There being no decision, there is nothing to appeal, and the mechanism in section 52 is simply not engaged. The applicant does not seek to impugn a decision; he seeks to compel the making of one. The objection on prematurity is therefore misconceived. 17.On limitation, section 26(1) requires a claim for compensation to be lodged within twelve months of the accident. That requirement is not absolute. Section 26(2) provides that a claim not lodged within the twelve months may nonetheless be considered where the accident has been reported in accordance with section 21, and section 27(2) provides that failure to report is not a bar to compensation where it is proved that the employer had knowledge of the accident from any other source. On the facts, the accident is alleged to have occurred on 13th September 2020, and the applicant's claim was placed before the Director in or about April and May 2021; the 1st respondent's own demand letter is dated 12th May 2021, hat is to say, well within twelve months. The claim was accordingly lodged in time. In any event the employer's knowledge of the alleged accident is beyond doubt on this record. The limitation objection fails both on the facts and by operation of the statutory exceptions. 18.On jurisdiction, Article 165(6) and (7) of the Constitution vests this court with supervisory jurisdiction over any person, body or authority exercising a judicial or quasi-judicial function, with power to call for the record and to make such orders as are appropriate to ensure the fair exercise of that function. An application to compel a public officer to perform a statutory duty falls squarely within that jurisdiction, and within the judicial review jurisdiction preserved by Order 53 of the Civil Procedure Rules and the Law Reform Act. It is true that appeals from decisions of the Director lie to the Employment and Labour Relations Court under section 52; but, as I have found, no decision has been made, and no party has impugned the competence of this court on that footing. The jurisdictional objection is without merit. 19.For these reasons the preliminary objection is overruled in its entirety. The statutory scheme and the Director's duty 20.WIBA establishes a self-contained, no-fault scheme for the compensation of employees injured, or who contract disease, in the course of employment. Section 16 substitutes that statutory scheme for common law remedies against the employer. In Law Society of Kenya v Attorney General & another (supra), the Supreme Court upheld the constitutionality of the core provisions of the Act — including sections 16, 21, 23 and 52 — and confirmed that first-instance jurisdiction to receive, inquire into and determine work injury claims is vested in the Director of Occupational Safety and Health Services, with appeals lying to the Employment and Labour Relations Court. 21.Within that scheme, section 21 requires an employee to give notice of an accident to the employer; section 22 requires the employer to report the accident to the Director; and section 23(1) provides, in mandatory terms, that: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 accordance with this Act. 22.Sections 26 and 27 govern the lodging of claims and preserve them, in defined circumstances, notwithstanding defects in reporting; sections 28, 30 and 37, together with the First and Third Schedules, govern the assessment and computation of compensation; and section 25 empowers the Director to require the employee to submit to medical examination. 23.Two features of the scheme are, in my view, decisive. First, the duty to inquire under section 23(1) is cast in mandatory language and is triggered not only by a formal report but also by the Director "having learned that an employee has been injured in an accident." The Director's knowledge of the applicant's alleged accident is, on this record, beyond dispute. Secondly, the Act does not leave the Director powerless in the face of an uncooperative employer. Section 26(3) provides that, where an employer fails to report an accident or to provide information requested by the Director, the Director may conduct an investigation and recover the cost of that investigation from the employer as a debt. The Director is thus armed with independent investigative and enforcement powers; he is not a passive registrar dependent upon the employer's goodwill. 24.It follows that the non-submission of the DOSH 1 form by the 2nd respondent, though it explains the stalling of the process, does not relieve the Director of his own statutory obligation. The very purpose of section 23(1), reinforced by section 26(3), is to enable the Director to establish, by his own inquiry, whether a compensable accident occurred — precisely the matter the 2nd respondent disputes. The disputed question whether the applicant's injuries arose out of and in the course of his employment is not a reason to decline the inquiry; it is the reason for it. Whether the 1st respondent failed to perform its duty 25.In fairness to the 1st respondent, the record shows that it did not sit wholly idle. It wrote to the employer, sought particulars, and recorded statements. To the extent that the applicant suggests the office did "nothing," that criticism is not made out. But the record equally shows that the process came to rest for an impermissible reason. In its letter to the interested party of 19th August 2022, the 1st respondent explained that the employer had indicated that it would await the determination of the court matter before engaging further, and stated in terms that:This office cannot proceed to award compensation since the company has stated that they will await the court decision before proceeding further with the matter. 26.In so reasoning, the Director made the performance of his own statutory function contingent upon the conclusion of separate proceedings to which he is not a party. That, with respect, was an error of law. The employment claim before the magistrate's court concerned the lawfulness of the applicant's termination, a contractual and statutory employment dispute. The claim under WIBA is a distinct, no-fault statutory entitlement to compensation for injury sustained in the course of employment. The two are legally and factually distinct causes of action. Nothing in WIBA authorises the Director to suspend his mandatory duty of inquiry under section 23(1) merely because a parallel employment dispute is pending. To hold otherwise would allow an employer, by the simple expedient of litigation or of non-cooperation, to stall indefinitely the very machinery that Parliament designed for the protection of injured workers. 27.I therefore find that, although the 1st respondent took certain preliminary steps, it failed and refused to discharge its substantive statutory duty to inquire into and determine the applicant's claim, having wrongly deferred that duty to the outcome of unrelated proceedings. To that extent the applicant has established a clear legal duty owed to him, a corresponding legal right, and a failure of performance. Whether, and on what terms, mandamus should issue 28.The nature of the remedy of mandamus was authoritatively expounded by the Court of Appeal in Republic v Kenya National Examinations Council ex parte Gathenji & 9 Others [1997] eKLR. Adopting Halsbury's Laws of England, the court held that mandamus is "of a most extensive remedial nature" and issues, "to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right," and even "where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." Two further passages from that decision are directly in point. 29.First, as to when the remedy lies, the court held:... an order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. 30.That is precisely the applicant's case against the 1st respondent, and, for the reasons already given, it is made out. 31.Secondly, and critically for the form of relief, the court cautioned as to the limits of the remedy:The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. 32.The court further explained that where a duty has been performed, albeit allegedly wrongly, mandamus is not the remedy, for "an order of mandamus cannot quash what has already been done." These principles are decisive of the form the relief must take. The applicant is entitled to an order compelling the Director to perform his duty, namely to inquire into and determine his claim. He is not entitled to an order dictating the result of that inquiry. 33.It follows that prayer (b) of the motion, which seeks to compel the Director "to issue an award" of compensation premised upon the 15% assessment, cannot be granted, for three reasons. First, it would require this court to direct the outcome of a statutory function which the law commits to the Director's own inquiry and judgment; mandamus commands the performance of the duty, not the manner or result of its exercise, and to order a specific award would be to usurp the Director's adjudicative role, contrary to to the standard set in the Gathenji case. Secondly, the very question upon which any award must depend, whether the applicant's injuries arose out of and in the course of his employment with the 2nd respondent, is genuinely and substantially disputed on the record. The 2nd respondent's case (that descaling was outsourced, that the applicant only fed wood to the boiler, that no injury was recorded, and that he absconded) may in the end be accepted or rejected, but it must first be weighed by the Director on evidence. This court cannot, on affidavit evidence and in judicial review, resolve that contest of fact, still less pre-empt it. Thirdly, the 15% assessment relied upon emanates from a private medical examination obtained by the applicant, and not from the prescribed statutory process; the degree of permanent disablement, and the corresponding compensation under the First and Third Schedules, must be determined through that process. 34.For completeness, the applicant's reliance in prayer (a) on "section 53(d) and (e)" of the Act is, strictly, misplaced: section 53 is headed "Director's reply" and is concerned with the procedure on objections and appeals; it is not the fount of the duty the applicant seeks to enforce. But a court looks to substance rather than to the label affixed to a prayer. The substantive duty relied upon — to inquire into and determine the claim — is plainly established by section 23(1), read with sections 26 and 27, and the application falls to be determined on that footing. 35.Accordingly, mandamus will issue, but in modified terms: to compel the 1st respondent to exercise its jurisdiction and to determine the applicant's claim, one way or the other, within a defined period, and to take the steps necessary for that purpose. So framed, the order commands no more than the 1st respondent is legally bound to perform. To render the order effective, and given that section 26(3) empowers the Director to compel the employer's cooperation, I will further direct the 2nd respondent to furnish the prescribed accident notification and the relevant records, and I will direct that the mere absence of a completed DOSH 1 form shall not, of itself, defeat the applicant's claim where the Director is seized of knowledge of the alleged accident and of his own powers of inquiry. Costs 36.Costs follow the event and lie in the discretion of the court. The applicant has substantially succeeded on the central question, that the 1st respondent wrongly failed to discharge its statutory duty, though he has not obtained the specific award he sought. These proceedings were necessitated by the 1st respondent's abdication of that duty. In the exercise of my discretion, and bearing in mind that the applicant is an injured workman who was driven to litigate in order to obtain a determination to which the law already entitled him, I award the applicant the costs of the application against the 1st respondent. The 2nd and 3rd respondents and the interested party shall each bear their own costs. Disposition 37.For the foregoing reasons, the court makes the following orders:(a)The preliminary objection raised by the 3rd respondent is overruled.(b)A declaration is hereby issued that the 1st respondent, the Director of Occupational Safety and Health Services, has failed and neglected to discharge its statutory duty under the Work Injury Benefits Act, 2007 to inquire into and determine the applicant's claim for work injury benefits.(c)An order of mandamus is hereby issued compelling the 1st respondent to receive, inquire into, and determine the applicant's claim for work injury benefits arising from the accident alleged to have occurred on or about 13th September 2020, in accordance with the Work Injury Benefits Act, 2007, and to render its decision within ninety (90) days of the date of this judgment.(d)For the purpose of order (c) above, the 1st respondent shall exercise its powers under the Act, including under sections 23, 25 and 26(3), to investigate the circumstances of the alleged accident, to require the 2nd respondent to furnish the prescribed accident notification (DOSH 1) and all relevant employment and medical records, and, if necessary, to refer the applicant for medical examination.(e)The 2nd respondent shall, within fourteen (14) days of service of this judgment, furnish the 1st respondent with the prescribed accident notification and all employment and medical records in its possession relating to the applicant.(f)The absence of a completed DOSH 1 form from the 2nd respondent shall not, of itself, defeat the applicant's claim, the 1st respondent being seized of knowledge of the alleged accident and possessed of independent powers of inquiry under the Act.(g)The prayer to compel the 1st respondent to issue a specific award of compensation (including at the rate of fifteen percent) is declined.(h)The applicant shall have the costs of the application against the 1st respondent; the 2nd and 3rd respondents and the interested party shall each bear their own costs. 38.Orders accordingly. DATED SIGNED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE