https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1493

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT MOMBASA MISC NO. E007 OF 2025 FAITH MUENI MBUNO AND JULIET NDANU MBINDA *(Suing for and on behalf of* *Henry Onde Ungugu-Deceased)* ………………………APPLICANTS VERSUS BLUEJAY INVESTMENTS LTD ………..………... RESPONDENT RULING **Background** 1. In the Application dated 21st January, 2025, the Applicants prayed for the following orders: 2. This Application be certified urgent and service be dispensed with in the first instance. 3. The Applicant be granted leave to file an Application against the Respondent, towards enforcement of the award/assessment of the Director of Occupational Safety and Health Services, Mombasa, made on 31st December 2013, outside the limitation period under statute. 4. The draft application annexed herein be deemed duly filed within the statutory timelines and that the same be admitted for purposes of the intended Suit 5. Costs of this Application abide by the outcome of the intended Suit. 6. The application was supported by the grounds set forth on the face thereof, and an affidavit sworn by the 1st Applicant. 7. Upon being served with the Application, the Respondent filed a Notice of Preliminary Objection, seeking that the Applicants’ application be struck out on the following grounds; 8. That pursuant to Section 4[2] of the Limitations Act, as read together with Section 90 of the Employment Act, the application is time-barred as it has been brought more than three [3] years after the cause of action. 9. This Honourable Court has no jurisdiction to hear and determine this matter under the Work Injury Benefits Act, 2007. 10. Nothing that the application raised a jurisdictional issue, this Court directed that it be canvassed first and by way of written submissions. 1. By its ruling dated 31st July, 2025, this Court rendered itself on the preliminary objection, finding that the same was without merit and anchored on inapplicable provisions of the law, and dismissed it with costs. 2. The effect of the ruling was, therefore, that the Applicants’ application had to proceed to a hearing on its merits. On 9th October 2025, this Court granted the Respondent 14 days’ leave to file a response to the application and further directed that the application would be canvassed by way of written submissions. **The Application** 1. The Applicants state that Henry Onde Ungugu [the deceased] was employed by the Respondent as a driver and died instantly in a work-related accident. Following the accident, the matter was reported to the Directorate of Occupational Safety and Health Services using DOSH Form I. Investigations were conducted, and an award was made on 31 December 2013 under DOSH Form 4, directing the Respondent to compensate his estate in the sum of Kshs. 2,448,000/-. 1. According to the Applicants, once the Director made the assessment, the Respondent was required by law to settle the award within ninety days, after which the Director would remit payment to the deceased’s estate. The Applicants further contend that if the Respondent was dissatisfied with the assessment, it ought to have lodged an objection or appeal as provided by law, but it failed to do so. 2. The Applicants assert that despite being notified of the assessment on 31 December 2013, the Respondent neither objected to nor appealed against the award and has to date failed to make payment. They further state that after the burial of the deceased, the 1st Applicant persistently followed up with the Respondent regarding the payment without success. 3. The Applicants also state that the Director issued several demand letters, including those dated 4 December 2017 and 27 June 2022, demanding payment of the assessed sum, but the Respondent remained adamant and failed to pay. 4. The deceased left behind one child who has been unable to attend school due to a lack of school fees and other necessities, and the 1st Applicant, as his widow, and the child have endured a long pursuit of justice. 5. According to the Applicants, the Respondent’s refusal to settle the Director’s award constitutes a continuing injury within the meaning of section 90 of the Employment Act, and that the injury has never ceased. 6. The Applicants contend that justice would only be served if the court exercises its inherent jurisdiction to enlarge time and allow the claim to proceed. They further argue that a purposive interpretation of section 90 of the Employment Act favours granting leave, and maintain that the Respondent will suffer no prejudice if an extension of time is granted, as it has failed to settle the Director’s award despite the clear statutory timelines. **The Respondent’s Response** 1. The Respondent, through a replying affidavit sworn by its Human Resources Manager, Lilian Mwende Kaindi, contends that, for all intents and purposes, the Applicants’ application herein is for the enforcement of an award under section 4 of the Limitation of Actions Act. Under that section, a suit for the enforcement of an award must be filed within 6 years of the date on which the cause of action arose. The exception contemplated under section 22 and the circumstances set out under section 27, under which an extension of time to lodge a suit out of time can be granted, do not apply to the instant matter. 1. The instant application is for the enlargement of time to enforce an award. It is not one for the enlargement of time to file a claim for negligence, nuisance, breach of duty, or personal injury where material facts were not within the claimant’s knowledge, as contemplated in the above-stated sections of the law. 2. Since the application concerns the enforcement of a DOSH award, it ought to have been grounded in the provisions of the Work Injury Benefits Act and the Employment and Labour Relations Court framework, which prescribe timelines for such claims and do not permit extensions of time in the manner sought by the Applicants. The Respondent therefore maintains that the application is incompetent and should be dismissed with costs. **Respondent’s submissions** 1. The Respondent submitted that the application is expressly founded on sections 4, 22, 27 and 31 of the Limitation of Actions Act, and argued that section 27 of the Act permits an extension of time only in claims founded on negligence, nuisance, or breach of duty involving damages for personal injury. According to the Respondent, the Applicants’ claim is not based on negligence or personal injury but on the enforcement of an award issued by DOSH. The Respondent therefore argued that the application does not satisfy the statutory requirements under section 27 of the Limitation of Actions Act and ought to be dismissed on that basis alone. 2. The Respondent further submitted that section 27(2) of the Limitation of Actions Act imposes a mandatory requirement that an applicant demonstrate that material facts of a decisive character were outside the applicant’s actual or constructive knowledge throughout the limitation period. 3. It was argued that the Applicants failed to demonstrate any such facts or to explain the prolonged delay in approaching the court. According to the Respondent, the Applicants were aware that the deceased had died in a work-related accident, that DOSH had conducted investigations and made an award, and that reminder letters had been issued demanding payment. 4. Despite this knowledge, the Applicants failed to bring proceedings under sections 87 and 90 of the Employment Act within the prescribed period. Instead, they continued to pursue enforcement through DOSH rather than approaching the court. 5. On the issue of judicial discretion, the Respondent submitted that although the grant of leave is discretionary, that discretion must be exercised strictly within the confines of the governing statute. 6. The Respondent argued that although section 27 of the Limitation of Actions Act confers discretion in certain specified circumstances, sections 87 and 90 of the Employment Act, which are the substantive provisions governing employment disputes, do not provide for an extension of time in the manner sought by the Applicants. 7. To support its submissions, the Respondent placed reliance on **Mweu v Kabai & Another (1972) E.A** and **Divecon Ltd v Shirinkhanu Sadrudin Samnani Civil Appeal No. 142 of 1997**. 8. The Respondent additionally invoked the equitable principle that equity aids the vigilant and not the indolent. It was submitted that the Applicants had delayed bringing the present proceedings by nearly six years and had failed to provide any reasonable explanation for the delay. The Respondent, therefore, argued that the Applicants had slept on their rights and should not benefit from equitable relief. Consequently, the Respondent urged the court to dismiss the application with costs. **Analysis and determination** 1. I have carefully considered the Applicants’ application, the grounds upon which it is premised, the affidavit in support thereof, the Respondent’s replying affidavit and its submissions, and the issues that arise for determination are whether the Applicants’ application for an extension of time is merited and whether this Court can justly adopt the Director’s award as a judgment of this Court. 1. Four things are certain here: an accident claim was lodged with the Director of Occupational Safety and Health Services under the Work Injury Benefits Act; the Director investigated the claim and assessed the damages award to the deceased’s beneficiaries; no objection or appeal was lodged against the assessment; and the Respondent did not settle the awarded sum. 2. I am cognizant of the fact that there have been unsettled waters over whether the limitation of actions period set out in section 89 [formerly Section 90] of the Employment Act applies to the enforcement of the Director’s award. One school of thought to which I subscribe holds that the provisions do not apply. On the other hand, there is the view that it does. 3. I have carefully considered the provisions of section 89 of the Employment Act, which provides; ***“Notwithstanding the provisions of Section 4[1] of the Limitation of Actions Act, Cap 22, no civil action or proceedings based on 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 after the act, neglect or default complained of, in case of continuing injury or damage, within twelve months next after the cessation thereof.”*** And hold the view that even with an overly broad approach, it cannot be concluded that the provision applies to proceedings for the enforcement of an award or verdict arising from proceedings under the Work Injury Benefits Act, which is a wholly independent Act from the Employment Act. If the legislature had intended the provision to apply, nothing would have been easier than for it to expressly provide so. 1. In my considered view, once an award of the Director is adopted as a judgment of the court for enforcement purposes, the applicability of Section 4[4] of the Limitation of Actions Act, which has not been ousted by section 90 of the Employment Act, sets in. The sub-section provides; **“An *action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or [where the judgment or a subsequent order directs any payment or delivery of property to be made at a certain date or recurring periods]* the date *of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”*** 1. By reason of the foregoing premises, I find that the Applicants’ application for extension of time is misplaced and founded on ignorance of the relevant stipulation of law. I decline to award the sought extension of time. 2. It would be remiss of this Court not to note that I agree with Counsel for the Respondent’s submissions that Section 27 of the Limitation of Actions Act would not provide a basis for extending the time to enforce an award by the Director. However, having found as I have hereinabove, I consider the submissions, though raising a valid point, would not change this Court’s view. 3. This Court notes that the Applicants sought, in the application, that the court deem the annexed application for adoption of the Director’s award as duly filed and served. The application seeks; 4. The Honourable Court be pleased to adopt as judgment of the Court (against the Respondents jointly and severally), the assessment/award of the Director of Occupational Safety and Health Services, Mombasa, made on 31 December 2013 5. A Decree do issue for; 6. The sum of Kshs. 2,448,000/- being the Director's award/assessment made on 31 December 2013; and 7. Interests thereon at court rates (14%) from the date of the award (31st December 2013) until payment in full. 8. Costs of this Application be awarded to the Applicant. 9. Given that the Respondent did not object to the award or appeal against it as provided for under the Work Injury Benefits Act, 2007, the overriding objective of this Court compels me to adopt the Director's award as a judgment of this Court. A decree shall issue for the sum of KShs. 2,448,000, with interest at court rates from the date of this order until full payment. 10. Costs of this application shall be for the Applicants. **Read, Signed and Delivered this 28th Day of May 2026.** **OCHARO KEBIRA** **JUDGE**