https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1647

Musembi v Bob Morgan Services Ltd (Miscellaneous Application E002 of 2026) [2026] KEELRC 1647 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1647 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E002 of 2026 HS Wasilwa, J June 17, 2026 Between Dominic Muthini Musembi Applicant and Bob Morgan Services Limited Respondent Ruling 1.In opposition to the application dated 9th January 2026, the Respondent filed a notice of preliminary objection dated 3rd February 2026 and prays for the application be dismissed and/or struck out with costs on the following grounds: 1.The Applicant’s Notice of Motion application dated 9th January 2026 offends Section 89 of the Employment Act No. 11 of 2007, as it has been lodged in this Court outside the 3 years from the date the cause of action arose. 2.The Court lacks jurisdiction to entertain the Applicant’s Notice of Motion application dated 9th January 2026, hence should down the tools. Applicant’s Case 2.In opposition to the preliminary objection, the Applicant filed a further affidavit dated 24th February 2026. 3.The Applicant avers that he is an employee of the Respondent as a motorcyclist and that it is common ground that he was involved in an accident in the course of his employment. He duly notified the Respondent of the incident, and the Respondent completed the requisite DOSHS forms. 4.He avers that the Director of Occupational Safety and Health Services (DOSHS) assessed the compensation payable to him at Kshs. 551,032.38 on 2nd March 2021, following which the Respondent referred the matter to Madison General Insurance Limited. 5.The Applicant avers that the Respondent neither lodged a dispute, objection nor appeal in the prescribed form within sixty (60) days of the assessment as required under Section 51 of the Work Injury Benefits Act (WIBA), nor sought leave from any court to lodge such dispute or objection out of time. 6.He further avers that the Respondent gave him an assurance that Madison General Insurance Limited would settle the claim, and that it would have been imprudent and an exhibition of bad faith to initiate legal proceedings against his employer while it had represented that settlement was being addressed. 7.It is the Applicant's case that the Respondent thereby placed him in a position where he could not seek enforcement of the award within time, and that the Respondent ought to be estopped from asserting that the application for enforcement is time barred. 8.The Applicant contends that the Respondent was in a state of acknowledgment of the debt owed to him and for purposes of Section 90 of the Employment Act, the default occurred only upon the Respondent's failure to settle the claim. 9.The Applicant further contends that claims arising from work injury must be addressed within the provisions of WIBA where the cause of action accrued, and that the parties are bound by WIBA provisions and not the Employment Act. 10.He avers that he did not delay in filing the application for adoption of the compensation, and relies on the doctrine of continuous injury, noting further that he remains in the Respondent's employment. 11.It is the Applicant's case that this Court cannot inquire into the merits of the DOSHS assessment at the adoption stage where no objection or appeal was lodged, and that to allow a substantive challenge to the Director's computation at this late stage would defeat the purpose of the streamlined WIBA process and encourage parties to bypass the designated dispute resolution framework in contravention of the doctrine of exhaustion. 12.The Applicant confirms that the DOSHS assessment, DOSH/WIBA/FORM 4, has not been paid or settled and urges the court to find the Respondent's Preliminary Objection without merit, dismiss it, and allow his application with costs. Respondent’s Submissions 13.On whether the application is statute barred, the Respondent submitted that the DOSHS award is dated 2nd March 2021 and it is not in dispute that it received it on the same date. 14.It was submitted that the Applicant's Notice of Motion filed on 9th January 2026 was lodged four years and nine months from the date of the award, well outside the three-year limitation period prescribed under Section 89 of the Employment Act, which provides that: "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." 15.The Respondent relied on Charles v Cheto [2025] KECA 784 (KLR), where the Court of Appeal sitting as a three-judge bench held that enforcement of the Director's decisions properly lies with the ELRC and is subject to the limitation period under Section 89 of the Employment Act. Further reliance was placed on Richard Akama Nyambane v ICG Maltauro Spa [2020] eKLR. 16.It is the Respondent’s submission that the application dated 9th January 2026, having been filed four years and nine months after the cause of action arose on 2nd March 2021, offends Section 89 of the Employment Act and is statute barred. 17.On jurisdiction, it was submitted that having established that the application is statute barred under Section 89 of the Employment Act, this court lacks jurisdiction to entertain it. 18.The Respondent submitted that having established that the court lacks jurisdiction to entertain the application, the application is only ripe for dismissal. 19.On costs, it was submitted that costs follow the event and that the Respondent ought to be awarded costs. Applicant’s Submissions 20.The Applicant submitted on three issues: whether the application for adoption of directors’ award is time barred pursuant to Section 89 (Section 90) of the Employment Act; whether the court has jurisdiction for adoption of directors' award; whether the court can inquire into the merits of DOSH assessment at the adoption stage. 21.On the first issue, the Applicant submitted that the three-year limitation period under Section 89 of the Employment Act does not apply to an application premised on WIBA. Reliance was placed on Naftali (Suing as the Legal Administrator and/or Representative of the Estate of the Late Monica Nafula Lucheli - Deceased) v County Government of Kakamega [2024] KEELRC 1781 (KLR), where Justice Keli held that: “The present application does not relate to an employer-employee relationship under the Employment Act, but rather falls within the application of WIBA ……………The limitation period under Section 89 of the Employment Act of three years does not apply in the present application as the award sought to be enforced was under WIBA.” 22.Further reliance was placed on Juma v Red Mamba Agencies Limited & another [2025] KEELRC 3568 (KLR), where it was held that an application for adoption of a Director's award is based under WIBA and addressed under Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, and not the Employment Act, effectively dismissing objections based on Section 89 of the Employment Act as without merit. 23.Relying on Malaba v Securex Agencies (K) Limited [2024] KEELRC 548 (KLR), wherein it was held that the respondent acknowledged the debt as employer by accepting the DOSHS award and that the refusal to pay such debt was recoverable in proceedings for adoption of a Director's award. It was submitted that the Respondent had assured the Applicant that the insurance would settle the assessed sum, and that it would have been imprudent and an exhibition of bad faith to initiate legal proceedings while the Respondent represented that settlement was being addressed. 24.The Applicant argued that the Respondent thereby placed him in a position where he could not seek enforcement of the award within time, and that the Respondent ought to be estopped from asserting that the application is time barred. 25.On continuing injury, it was submitted that the Applicant remains in the Respondent's employment to date, a fact not denied, and that the claim is in the nature of a continuing injury within the meaning of Section 90 of the Employment Act. Reliance was placed on George Hiram Ndirangu v Equity Bank Limited [2015] eKLR, where the court held that continuing injury includes the acknowledgment of a claim and failure to reimburse the claimant, being an injury still in the process of being committed. Further reliance was placed on Johnson Kazungu v Kenya Marine & Fisheries Research Institute [2021] eKLR, the court held that: "The Claimant is still in the respondents' employment and his pleaded case is that he continues to be underpaid... the court finds there is no evidence, upon material on record, that the alleged continuing injury has ever ceased.” 26.The Applicant submitted that since he remains in employment and the continuing injury has never ceased, the issue of the twelve-month limitation period from cessation of the continuing injury under Section 90 does not arise, and the Preliminary Objection wholly collapses. 27.The Applicant further submitted that under Rule 14(3) of the Employment and Labour Relations Court (Procedure) Rules, 2016, a Preliminary Objection must stem from the pleadings filed by the parties, and that as at 3rd February 2026 when the notice of Preliminary Objection was filed, the Respondent had not filed any pleadings, such that the Preliminary Objection does not arise from any validly filed pleadings. 28.It was further argued that Article 159 of the Constitution grants the court discretion to address substantive issues instead of dwelling on technicalities, and that Article 48 guarantees every person the right to access justice. 29.On jurisdiction, the Applicant submitted that the court has jurisdiction to entertain the application, relying on Charles v Cheto [2025] KECA 784 (KLR), where the Court of Appeal held that the ELRC has jurisdiction for adoption of a Director's award, stating that the holder of the award can move the court for enforcement pursuant to its jurisdiction under Article 162 of the Constitution as read with Section 12 of the ELRC Act. 30.On the final issue, it was submitted that the court cannot inquire into the merits of the DOSHS assessment at the adoption stage where no objection or appeal was lodged, as to do so would defeat the purpose of the streamlined WIBA process and encourage parties to bypass the designated dispute resolution framework in contravention of the doctrine of exhaustion. 31.I have examined all the averments and submissions of the parties herein. The applicant has raised a preliminary objection on this matter indicating that the application has been filed late in time against the provisions of section 89 of the Employment Act. 32.The application before me relate to the adoption of an award under WIBA. My understanding is that an award under Wiba it is basically an injury claim which would ordinarily be construed to be a “tort” had the injury not occurred at work. The payment of a claim following the assessment by the Director of WIBA is in my view sue generic and cannot be classified as an employment claim which falls under section 89 of the Employment Act 2007. Such a claim, would fall under the WIBA act and not under the Employment Act. This application has been filed under WIBA Act and the Employment Act does not therefore apply. The preliminary objection must therefore fail and I declare that the preliminary objection has no merit and is thus dismissed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE