https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1793

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **MISC. APPLICATION NO. E004 OF 2026** **EVANS MBOGO KITHUA…………………………………….......APPLICANT** **VERSUS** **KENYA POWER AND LIGHTING COMPANY LIMITED….RESPONDENT** **RULING** 1. The Applicant herein, **Evans Mbogo Kithua**, commenced these proceedings through a Notice of Motion dated 18th February 2026, seeking, among other orders, the adoption as a judgment of this Court of the award made by the County Director of Occupational Safety and Health Services on 14th July 2021, and the entry of judgment against the Respondent in the sum of Kshs 5,047,286.88, being compensation assessed under the Work Injury Benefits Act. 2. Following service of the Notice of Motion, the Respondent lodged a Notice of Preliminary Objection dated 11th March 2026, premised on the following grounds: - 3. **THAT the Applicant’s Notice of Motion dated 18th February 2026, which seeks the adoption of the Director’s award dated 14th July 2021 as a judgment of this Honourable Court, is statutorily time-barred by virtue of Section 89 of the Employment Act 2007 and the applicable jurisprudence as set out in Charles v Cheto (2025) KECA 784 (KLR) and Richard Akama Nyambane v ICG Maltauro Spa (2020) KEELRC 847 (KLR).** 4. **THAT by reason of the foregoing limitation, this Honourable Court lacks jurisdiction to entertain the Application.** 5. **THAT in the circumstances, the said Application is incompetent, bad in law and an abuse of the process of this Honourable court and ought to be struck out with costs to the Respondent.** **Submissions** 1. On 22nd April 2026, the Court directed that the Respondent’s Objection be disposed of by way of written submissions. The parties duly complied, and the Court has carefully considered the submissions filed. 2. On its part, the Respondent submits that the award sought to be enforced emanates directly from an employer-employee relationship and arose from a claim instituted pursuant to ***Section 26 of the Work Injury Benefits Act***. The Respondent further contends that whereas the award was rendered on 14th July 2021, the present application for its enforcement was filed on 20th February 2026, approximately four (4) years and seven (7) months later. According to the Respondent, the application was therefore instituted outside the three-year limitation period prescribed under ***Section 89 of the Employment Act*** and is consequently statute-barred. 3. The Respondent has further argued that applications seeking the enforcement of awards made by the Directorate of Occupational Safety and Health Services are subject to the limitation framework under ***Section 89 of the Employment Act***. In support of this contention, reliance has been placed on the decisions in ***Ng’ang’a v County Government of Nakuru (2023) KEELRC 789 (KLR), Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR), Malaba v Securex Agencies (K) Limited (2024) KEELRC 548 (KLR)*** and ***Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment) Neutral citation: [2025] KECA 784 (KLR).*** 4. The Respondent has further submitted that the Applicant’s claim is irredeemably statute-barred and cannot be salvaged through the invocation of **Section 4(1) of the Limitation of Actions Act.** 5. On the other hand, the Applicant has contended that the application before the Court is purely one for enforcement and does not constitute a claim of the nature contemplated under ***Section 89 of the Employment Act***. The Applicant has further argued that the matter arises solely from a work-related injury governed by the Work Injury Benefits Act and not from the Employment Act. In support of this position, reliance has been placed on the decision in ***Mwooni (Suing on her own behalf and on behalf of the Estate of the Late Mwendwa Mwooni Mwanzia – Deceased) v Coast Bus Limited [2023] KEELRC 1266 (KLR).*** 6. The Applicant has further submitted that he is not seeking the determination of a fresh claim but rather the enforcement of the Director’s award. According to the Applicant, such proceedings do not fall within the ambit of Section 89 of the Employment Act and are therefore not subject to the limitation period prescribed therein. Further support for this proposition is drawn from the decision in ***Karanja v Rift Valley Machinery Services Ltd [2024] KEELRC 1617 (KLR).*** 7. The Applicant has further argued that the applicable limitation period in respect of the enforcement of an award or judgment is that provided under ***Section 4(4) of the Limitation of Actions Act.*** **Analysis and Determination** 1. To my mind, the singular issue for determination is whether the Applicant’s application seeking adoption of the Director’s award dated 14th July 2021 is time-barred by virtue of ***Section 89 of the Employment Act.*** 2. The parties have taken diametrically opposed positions on the applicability of ***Section 89 of the Employment Act*** to the present dispute. 3. The aforementioned Section 89 of the Employment Act provides as follows: ***[89]Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), 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.*** 1. My interpretation of the foregoing provision is that it bars the institution of claims arising under the Employment Act or a contract of service after the expiry of three (3) years from the date the cause of action accrued. 2. In my considered view, the Employment Act generally governs claims arising from a contract of service or from rights and obligations created thereunder. In essence, the Employment Act regulates the employment relationship between employer and employee and applies to disputes founded on breach of the employment contract, including claims for unfair termination, unpaid salary, and other employment-related benefits. 3. On the other hand, the Work Injury Benefits Act provides a statutory framework for compensation to employees in respect of injuries or diseases sustained in the course of employment. Fundamentally, the Work Injury Benefits Act establishes a distinct compensation regime for work-related injuries. 4. Consequently, in the present case, while the claim is rooted in the employment relationship between the Applicant and the Respondent, there is no dispute arising from a contract of service between the two parties for adjudication under the Employment Act so as to attract the operation of Section 89. 5. It is therefore my respectful view that the applicable statutory framework in the present case is the Work Injury Benefits Act, as contemplated under Section 16 thereof, which is couched in the following terms: ***[16] No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.*** 1. The total sum of my consideration is that the limitation period under ***Section 89 of the Employment Act*** is inapplicable to work injury claims falling under the Work Injury Benefits Act, such as the present one. 2. Accordingly, the Notice of Preliminary Objection dated 11th March 2026 is hereby overruled, with an order that costs shall be in the cause. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **26th** dayof **June** 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: For the Applicant Mr. Mahugu For the Respondent Ms. Sheth instructed by Ms. Bett Court Assistant Ndati **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**