https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1774

Crustancean Processors Ltd v Babuhija (Appeal E045 of 2026) [2026] KEELRC 1774 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1774 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E045 of 2026 M Mbarũ, J June 29, 2026 Between Crustancean Processors Limited Appellant and Mwalimu Mohamed Babuhija Respondent Ruling 1.The appellant filed an application dated 13 march 2026 under the provisions of article 159(2) (d) of the constitution, Section 20(1) of the Employment and Labour Relations Court Act, section 52 (1) and (2) of the Work Injury Benefits Act, Order 50 rule 6 f the Civil Procedure Rules and Rule 18 of the Employment and Labour Relations Curt Rules seeking orders:a.The court be pleased to grant leave to the appellant to file an appeal out of time against the judgment by the Director of Occupational Safety and Health Services in WIBA/MBA/05734/2025 delivered on 19 February 2025.b.This court be pleased to stay proceedings in Mombasa ELRC Misc. Application No. E123 of 2025, pending the hearing and determination of this appeal herein. 2.The Appellant is supported by Asif Ameer Suleiman Verjee, the director of the appellant, who avers that the respondent was employed by the appellant as a driver and worked until 22 March 2025, when he stormed into the appellant’s office and assaulted him for allegedly failing to compensate him for injuries sustained in a road accident that occurred on 9 April 2024 at Hindi along Malindi-Lamu road. On 9 April 2024, the respondent was driving the Appellant’s vehicle when militants believed to be Al-Shabab terrorists attacked the convoy of motor vehicles and opened fire. In the process, a bullet hit the appellant’s vehicle, and falling glass shards slightly injured the respondent. 3.The respondent was sued, along with a police abstract detailing the circumstances of the injuries. The appellant was not responsible for the injuries and hence not liable. 4.The delay in filing the appeal is not deliberate. The judgment of the Director of Occupational Health and Safety (DOSH) was not served on the appellant, thereby preventing the appellant from appealing. The Appellant only became aware of Mombasa ELRC Misc. Application E123 of 2025 on 19 February 2026, when it came up for hearing, and hence took these steps to file the appeal. 5.In reply, the respondent filed his Replying Affidavit and avers that on 9 April 2024, while driving the appellant’s vehicle as a driver, he was attacked by terrorists who shot at him. He was rescued and taken to the hospital for treatment. 6.The employer refused to compensate him for the injuries as an employee. 7.The respondent avers that the appellant filed DOSH Form 1, and he submitted it to DOSH. On 19 February 2025, DOSH issued an assessment and award, which was served upon the Appellant, but the Appellant declined to pay. 8.The respondent avers that under section 51(1) of the Work Injury Benefits Act (WIBA), any person aggrieved by the DOSH's decision should lodge objections within 60 days, which the appellant did not do. Under section 51(2) of the WIBA, objections to the DOSH should be made in writing to DOSH, which the appellant did not do. Under section 52(2) of WIBA, an aggrieved party from the decision of DOSH on work injury award should file an appeal to the court within 30 days, which was not done by the appellant. 9.On 19 February 2025, the appellant filed an objection but has not filed any reply to the director and is thus not entitled to an appeal therefrom. The office prepared DOSH Form 4 upon an assessment and award. The appeal herein is an abuse of the court process and should be dismissed with costs. 10.The appellant filed a Further Affidavit and avers that section 51 of WIBA provides that any person aggrieved by the decision of DSH may file objections within 60 days. The appellant lodged objections with the DOSH on 21 March 2025, which is within the stipulated period. 11.The DOSH responded to the Objections through a letter dated 25 March 2026, and the objection is scheduled for a hearing on 22 April 2026. While the objections are still under consideration, the scheduled judgment is irregular and premature. Determination 12.The appellant filed an appeal seeking leave to file out of time against the DOSH award dated 19 February 2025. 13.Under Section 52(2) of the WIBA, upon the decision of the DOSH following a work-related injury and a compensation claim, an appeal should be lodged 30 days from such date. The appellant filed no appeal. 14.In ordinary practice, where leave is sought to file an appeal out of time, there is a single purpose that is addressed through miscellaneous applications. Upon the court allowing or disallowing the same, a party is guided. The purpose of the leave is addressed with finality. Filing an appeal and then applying for leave to file the same appeal out of time is sheer abuse of the court process. 15.The appellant submitted that following the DOSH award on 19 February 2025, objections were filed pursuant to section 51 of the WIBA. These objections were filed on 21 March 2025 within the 60-day timeline allowed under the WIBA. The DOSH scheduled a hearing thereof. 16.Although the WIBA does not preclude the filing of an appeal where there are objections, good practice would require an objector to allow such objections to be addressed with finality before opting to move the court for leave to file an appeal out of time, as was done here. 17.The appellant has admitted that there exists Mombasa ELRC Misc. Application No. E123 of 2025 over the same matters relating to the respondent seeking to enforce the award of the DOSH. The Appellant has filed objections with DOSH. A decision is pending before the DOSH and the Court on the same subject matter. 18.Moving the court under an appeal and seeking leave to file one out of time is an abuse of the court process, a form of unnecessary multiplicity of suits, and does not foster the proper administration of justice. 19.Application dated 13 March 2026, being an abuse of court process, is without merit and is dismissed with costs to the respondent. There being no appeal, upon assessment of due costs, the file shall stand closed. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………… and…………………………………..………….