Omoke v China National Ero-Technology International Engineering Corporation (Miscellaneous Application E511 of 2025) [2026] KEELRC 936 (KLR) (17 April 2026) (Ruling)

Omoke v China National Ero-Technology International Engineering Corporation (Miscellaneous Application E511 of 2025) [2026] KEELRC 936 (KLR) (17 April 2026) (Ruling) Neutral citation: [2026] KEELRC 936 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E511 of 2025 AK Nzei, J April 17, 2026 Between Hesbon Mariita Omoke Applicant and China National Ero-Technology International Engineering Corporation Respondent Ruling 1.The application before me for determination is the Applicant’s Notice of Motion dated 10th December, 2025. The Applicant seeks the following Orders:-a.That the compensation of Kshs.265,286.40 assessed by the Director of Occupational Safety and Health Services to the Applicant (sic) herein be adopted as a Judgment of the Court.b.That a decree be issued in accordance with the assessment of the Director of Occupational Safety and Health Services for the sum of Kshs.265,286.40, with interest at 14% per annum from 17th March, 2021.c.That costs of the application be paid by the Respondent. 2.The application is based on the supporting affidavit of the Applicant sworn on 10th December, 2025. It is deponed in the said supporting affidavit, inter-alia:-a.that the Applicant was employed by the Respondent as a carpenter, and on 24th June, 2019 sustained a left shoulder dislocation injury while on duty.b.that the Claimant was treated in different hospitals, and was later examined at Kenyatta National Hospital.c.that the matter was reported to the Director Occupational Safety and Health Services, and a DOSH/WIBA 4 was duly filled, with his permanent incapacity being assessed at 15% and the compensation payable at Kshs.265,286.40.d.that the Director sent a demand to the Respondent for payment on 17th March, 2021, but the Respondent refused to pay the assessed sum.e.that the Applicant’s Advocates sent [another] demand dated 8th December, 2025, but the Respondent refused to pay the aforesaid assessed sum. 3.Documents annexed to the supporting affidavit include copies of the Applicant’s National Identification Card, DOSH/FORM 1 duly filled by the Respondent, a letter by Kenyatta National Hospital to the Respondent (dated 4th March, 2021) and DOSH/WIBA/FORM 4 dated 17th March, 2021, among other documents; which include a demand by the Applicant’s Advocates (dated 8th December, 2025). 4.The application is not opposed, though the Respondent is shown to have been served. 5.I have noted from the aforementioned documents filed with the application that the compensation payable to the Applicant was assessed by the Director of Occupational Safety and Health Services (Director) on 17th March, 2021, and that a demand for payment thereof was sent out to the Respondent by the Director on even date. The demand is contained in the DOSH/WIBA 4, which is addressed to the Respondent. Pursuant to Section 26(4) of the Work Injury Benefits Act (WIBA), the assessed compensation was payable by the Respondent (the employer) within 90 days from the date payment was demanded by the Director. The Applicant has deponed that payment was not made. 6.Failure by the Respondent to pay within 90 days of the said demand amounted to an offence pursuant to Section 26(6) of the Act, and gave rise to a civil cause of action on the part of the Applicant. It is now approximately five (5) years since the said civil cause of action arose. The claim herein, being one arising from a contract of service/employment between the Applicant and the Respondent, ought to have been filed in Court within three years from the date of default by the Respondent to pay, pursuant to Section 89 (formerly Section 90) of the Employment Act which provides as follows:-“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, 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.” 7.The application herein was filed approximately five (5) years after the date of default by the Respondent, and is therefore statute barred. It cannot be entertained or determined by this Court. The Court has no jurisdiction to grant orders based on a statute-barred suit. 8.The Notice of Motion dated 10th December, 2025 is hereby struck off with no order as to costs. 9.Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF APRIL 2026AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.Appearance:Mr. Masua for the ApplicantNo appearance for the Respondent