https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1648

Ochiko v Otiso & 2 others (Miscellaneous Application E484 of 2025) [2026] KEELRC 1648 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1648 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E484 of 2025 CN Baari, J June 18, 2026 Between Jared Omondi Ochiko Applicant and Dr. Lilian Nyakerario Otiso 1st Respondent Lvct Health 2nd Respondent Director of Occupational Safety & Health Services Nairobi County 3rd Respondent Ruling 1.This ruling relates to a Notice of Preliminary Objection by the 1st and 2nd Respondents dated 5th January, 2026, and a Motion application dated 18th January, 2026, by the same parties. 2.In the Preliminary Objection, the 1st and 2nd Respondents argue that Rule 96 of the Employment and Labour Relations Court (Procedure) Rules, 2024 is unconstitutional for lacking a statutory foundation, and that the Applicant’s application contravenes Sections 24(4), 26(4), 51, and 52 of the Work Injury Benefits Act, and ought to be struck out with costs. 3.Under the Motion, the 1st & 2nd Respondents seek the following reliefs:i.That this Honourable Court be pleased to find that the 1st Respondent/Applicant herein, DR. LILIAN NYAKERARIO OTISO, was erroneously enjoined as a Party in this proceedings by the Applicant/Respondent, JARED OMONDI OCHIKO.ii.That the Honourable Court be pleased to make an order striking out the name of the 1st Respondent/ Applicant, DR. LILIAN NYAKERARIO OTISO from the proceedings herein. 4.The 1st Respondent/Applicant states that she is merely an employee of the 2nd Respondent, a corporate entity capable of suing and being sued in its own name, and that the dispute concerns an employer-employee relationship to which she is not a party as employer, and that there exists no contractual or tortious basis for imposing personal liability upon her. 5.She further argues that her inclusion in the proceedings amounts to a fatal misjoinder, as no reasonable cause of action has been disclosed against her. It is her further position that her joinder is scandalous, vexatious, and intended to embarrass her, and she would suffer prejudice if the orders sought are granted. 6.She therefore urges the Court, in the interest of justice and fairness, to allow the application. 7.The Applicant/Respondent opposed the motion vide a Replying affidavit he swore on 5th February, 2026, wherein he contends that the 1st Respondent is not merely an employee, but the Executive Director of the 2nd Respondent. 8.He further contends that, in her capacity as Executive Director, the 1st Respondent received all notices from the 3rd Respondent and issued them on behalf of the 2nd Respondent, a fact allegedly acknowledged by the 2nd Respondent itself. 9.The Applicant/Respondent therefore maintains that the 1st Respondent was the principal officer through whom the 2nd Respondent undertook all material acts concerning the Director’s Award, rendering her a proper and necessary party to the proceedings. 10.The Applicant/Respondent states that before resigning on medical grounds, he formally submitted his resignation to the 1st Respondent pursuant to the 2nd Respondent’s HR Policy. He avers that the policy required the Executive Director’s approval for a resignation to be valid, which approval was duly granted in writing, followed by issuance of a Certificate of Service. 11.It is his position that no evidence has been produced to establish the authority of the Operations Officer to act in the proceedings, while the 1st Respondent’s authority as Executive Director is clear. According to the Applicant/Respondent, the Executive Director had ultimate responsibility for implementing and administering the HR Policy, thereby justifying the 1st Respondent’s joinder in the suit. 12.Parties were directed to canvass both the objection and the motion through written submissions, and submissions were filed for all the parties. The 1st & 2nd Respondents’ Submissions 13.The Respondents submit that the Applicant appeared at the 2nd Respondent’s offices, accompanied by Occupational Health and Safety officers, and presented a demand dated 9th July 2024 seeking payment of Kshs. 10,820,200/= as compensation for alleged 100% permanent disablement arising from an accident said to have occurred on 2nd April 2024. 14.The Respondents deny that any accident involving the Applicant occurred or was ever reported on 2nd April 2024, contending that the said date was in fact the date on which the Applicant resigned from employment and ceased being an employee of the 2nd Respondent. They further aver that between 20th May 2024 and 20th June 2024, the Applicant repeatedly visited the Respondent’s offices and harassed and intimidated HR staff in an attempt to compel them to sign DOSH Form 1, being the Notice by Employer of an Occupational Accident. 15.The 2nd Respondent avers that it objected to the Director’s award under Section 51 of WIBA on the grounds that the Applicant’s condition was not shown to be occupational, that he had been on sick leave before resigning, and that he had submitted inconsistent medical reports. 16.The Respondents further state that the Director later reviewed the assessment, reducing the disability rating from 100% to 40% and the compensation award accordingly. They contend that the Applicant nonetheless moved the Court prematurely for adoption of the award before the expiry of the statutory objection period. 17.The Respondents argue that the Applicant’s claim is riddled with inconsistencies regarding the date and nature of the alleged occupational injury, with different DOSH demands referring to separate accident dates and varying compensation awards. They contend that the Applicant was on sick leave at the material time, making it unlikely that any workplace accident occurred in the course of employment. 18.The Respondents further submit that the Court cannot enforce contradictory DOSH decisions and question whether the alleged work-related mental injury constitutes an occupational disease under the Work Injury Benefits Act. 19.The Respondents contend that mental injury is not listed as an occupational disease under the Second Schedule to the Work Injury Benefits Act and therefore does not fall within the ambit of Section 38(1)(a) of the Act. They argue that the Director acted without jurisdiction in classifying the Applicant’s alleged mental injury as an occupational disease, maintaining that WIBA was intended to address physical or factory-related workplace injuries rather than stress or pressure associated with office work. 20.The Respondents argue that the Applicant has not proved that the alleged mental injury was work-related or that it resulted in loss of earning capacity. They further point to the Applicant’s subsequent activities, including criminal proceedings and a separate suit in which he described himself as being of sound mind, as inconsistent with his claim of mental disability. 21.Additionally, they contend that the Applicant failed to institute the proceedings through a next friend or guardian ad litem as required for persons alleged to be of unsound mind. 22.The Respondents argue that the Applicant’s conduct is inconsistent with the alleged mental disability, noting that despite claims of 100% or 40% mental incapacity, he continued to run a medical clinic, file suits in person declaring himself to be of sound mind, and swear affidavits independently. They therefore question the reliability of the disability assessment and urge the Court not to adopt the award without scrutiny. 23.The Respondents further contend that liability has not been properly established, as the Applicant has failed to demonstrate what duty the 2nd Respondent allegedly breached or what measures it failed to put in place to prevent the alleged mental injury. 24.The Respondents argue that the Court lacks jurisdiction to adopt and enforce DOSH awards, as neither the Constitution, the ELRC Act, nor Rule 69 of the ELRC Procedure Rules expressly confer such power. They contend that Rule 69 applies only to settlements, arbitral awards, and ADR decisions, not administrative determinations made by DOSH under WIBA. 25.It is their case that WIBA provides its own enforcement mechanism through criminal sanctions, and procedural rules cannot expand the Court’s substantive jurisdiction beyond that granted by statute or the Constitution. 26.The Respondents contend that the Court cannot adopt a DOSH award without scrutinizing the underlying process, evidence, liability, and quantum, particularly where the process is administrative and allegedly opaque. They further argue that the application is premature because the DOSH decision remains subject to challenge through judicial review within the statutory period, and adopting it now would improperly foreclose that right. The Applicant’s Submissions 27.The Applicant contends that the Respondents’ preliminary objection fails to meet the legal threshold for a valid preliminary objection, as it is not based on a pure point of law but on an erroneous interpretation and application of the relevant legal framework. 28.The Applicant contends that the Respondents’ objection, premised on the alleged unconstitutionality of Rule 96 of the ELRC Procedure Rules, 2024, is misconceived. He argues that the application is properly anchored on Rule 69 of the Rules, which provides for adoption and enforcement of awards, including those under WIBA. According to the Applicant, reliance on Rule 96 is a misapprehension of the law or a drafting error that cannot form a valid basis for a preliminary objection. 29.The Applicant submits that the Court is properly seized of jurisdiction under Section 26 of the Work Injury Benefits Act and Rules 69 and 73 of the ELRC Procedure Rules, 2024, which provide the legal framework for adoption and enforcement of DOSH awards. He relies on the case of Lagat v Kenya Ordinance Factories Corporation (Misc. Cause E038 of 2023), where the Court held that parties should not raise technical objections to jurisdiction without proposing an alternative forum, especially where substantive justice under Article 159(2) and Section 20(1) of the ELRC Act is at stake. 30.The Applicant further asserts that the ELRC, established under Article 162(2)(a) of the Constitution, has exclusive jurisdiction over employment and labour disputes, including work injury claims, and is therefore competent to determine the present application. 31.The Applicant contends that the Respondents’ preliminary objection is legally untenable as it is inconsistent with their own application seeking to strike out the 1st Respondent, which requires the Court’s exercise of discretion. He argues that such a request cannot be determined through a preliminary objection, which is confined to pure points of law. Relying on Nitin Properties Ltd v Singh Kalsi & Another [1995] eKLR, the Applicant submits that a preliminary objection cannot stand where facts must be ascertained or where the Court is called upon to exercise discretion. 32.The Applicant submits that the Court is currently seized of an application for adoption of a Director’s Award under Rule 69 of the ELRC Procedure Rules, 2024, which provides the governing procedural framework at this stage. He argues that enforcement and reliance on the Civil Procedure Rules, including Order 2 Rule 15, only arises at the execution stage under Rule 73(2), and is therefore premature in the present proceedings. 33.The Applicant further contends that the 2nd Respondent, having invoked the Court’s inherent jurisdiction in its Replying Affidavit, cannot simultaneously challenge the Court’s jurisdiction, as this amounts to approbation and reprobation. He relies on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR to emphasize that jurisdiction is fundamental and must be determined as a threshold issue, and cannot be invoked inconsistently or conditionally. 34.The Applicant argues that allowing the Respondents’ objection would deprive him of a proper forum to enforce a lawful award, thereby defeating the constitutional right of access to justice and undermining the enforcement framework provided under the law. 35.The Applicant submits that Section 26 of the Work Injury Benefits Act provides a broad and facilitative framework for lodging and processing compensation claims, allowing claims to be made by or on behalf of the injured person within the prescribed time. He argues that this demonstrates the Act’s remedial purpose of ensuring access to compensation. 36.He further submits that once the Director of Occupational Safety and Health Services issues an award, the resulting obligation on the employer or insurer is clear and mandatory. In this case, the Applicant maintains that he properly invoked Section 26 together with Rules 69 and 73 of the ELRC Rules to seek adoption of the award as a judgment of the Court, making it enforceable as a civil debt in accordance with the law. 37.The Applicant argues that Section 26 of WIBA imposes a mandatory duty on employers and insurers to pay compensation within 90 days, making DOSH awards binding and enforceable once issued. He contends that upon issuance of the final award on 8th October 2025, the Director became functus officio and the process was concluded, leaving only enforcement. 38.It is further submitted that the Respondents have neither complied with nor challenged the award but are instead engaging in unlawful parallel processes, including a fresh medical review, to delay enforcement. He maintains that such actions are illegal and cannot be used to defeat a valid DOSH award. 39.The Applicant submits that under Section 25(1) of WIBA, a second medical examination can only be conducted with the approval of the Director, and any assessment done without such approval is unlawful. He relies on National Gender & Equality Commission v DOSHS to emphasize that the statutory safeguard exists to prevent employers or insurers from obtaining biased medical reports against injured employees. 40.Accordingly, he argues that any second medical review conducted without the Director’s approval is invalid and cannot be used to challenge or defeat the Director’s award. 41.The Applicant argues that the Respondents’ justification for not appealing within the statutory 30-day period, namely, awaiting an insurer’s medical review, is not recognized under WIBA and amounts to an illegality. He contends that any procedure outside a formal appeal within the prescribed timeframe, particularly one that revisits the merits of the Director’s decision, is unlawful. He relies on Charles v Cheto [2025] KECA 784, where the Court of Appeal emphasized that challenges to a DOSH award must be made through a timely appeal under Section 52 of WIBA, and that courts cannot re-evaluate the merits of the Director’s decision, as that mandate lies exclusively with the Director. 42.The Applicant finally submits that by failing to lodge an appeal within time and instead pursuing extraneous processes, the Respondents have acted outside the statutory framework, entitling the Applicant to enforcement of the award. Analysis and Determination 43.I have considered the applications, the Replying affidavits, the Preliminary Objection, and the rival submissions. The following issues arise for determination:-i.Whether the Notice of Preliminary Objection is valid.ii.Whether this Court has jurisdiction to adopt and enforce a Director’s award under WIBA through Rule 69 of the ELRC Procedure Rules, 2024.iii.Whether the 1st Respondent is a proper party to these proceedings.iv.Whether the Applicant is entitled to adoption and enforcement of the Director’s award. Whether the Preliminary Objection is valid 44.The classical test for a Preliminary Objection is that set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded are correct, and must not involve contested facts or require exercise of judicial discretion. 45.The Respondents’ objection challenges, amongst others, the constitutionality of this court’s procedural rules, compliance with WIBA provisions, factual disputes on accident occurrence, medical causation, disability assessment, and the procedural history of DOSH decisions. 46.These are, without doubt, plainly contested factual and evidentiary matters requiring proof, and as held in Nitin Properties Ltd v Singh Kalsi & Another [1995] eKLR, a Preliminary Objection cannot stand where the Court is invited to exercise discretion or ascertain facts. 47.The preliminary objection, therefore, does not meet the threshold in Mukisa Biscuit and is hereby dismissed.Whether this Court has jurisdiction to adopt and enforce a Director’s award under WIBA through Rule 69 of the ELRC Procedure Rules, 2024 48.The Respondents argue that Rule 69 of the ELRC Rules is unconstitutional and that DOSH awards are administrative and not enforceable by adoption. 49.Contrary to the Respondents’ position, the jurisdiction of the ELRC is anchored in Article 162(2)(a) of the Constitution, Section 12 of the Employment and Labour Relations Court Act, and Section 26 of WIBA as read together with Sections 51 and 52. 50.In Lagat v Kenya Ordinance Factories Corporation (E038 of 2023) [2024] KEELRC, also cited by the Applicant, the Court held that parties should not raise technical jurisdictional objections without demonstrating an alternative lawful forum, especially where substantive justice is at stake under Article 159(2) of the Constitution. 51.In the premise, I find and hold that this Court is properly seized of jurisdiction to consider the adoption of a DOSH award within the statutory WIBA framework and its procedural rules. 52.I further hold that Rule 69 is a procedural facilitation mechanism and does not oust jurisdiction conferred by statute. Whether the 1st Respondent is a proper party to these proceedings. 53.The Respondents’ Motion seeks the striking out of a party, which is a discretionary remedy under Order 2 Rule 15 of the Civil Procedure Rules. 54.The 1st Respondent contends that she is merely an employee of the 2nd Respondent and should not have been joined to these proceedings. On his part, the Applicant asserts that the 1st Respondent is the Executive Director of the 2nd Respondent, who approved his resignation under the Respondent’s HR policy, issues notices on behalf of the employer, and controls the implementation of HR and WIBA processes, amongst other roles. 55.The principles on joinder are set in Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER 273 and locally in Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55, where a necessary party is one whose presence is essential to effectually and completely adjudicate the dispute. 56.The pleadings herein show that the 1st Respondent is the principal decision maker through whom material acts relating to employment and the WIBA process were undertaken. 57.For the reasons foregone, I hold that the joinder of the 1st Respondent in the proceedings herein is proper. 58.The application for striking out is therefore declined. Whether the Applicant is entitled to adoption and enforcement of the Director’s award 59.The Respondents argue that mental injury/illness is not listed in the Second Schedule as being subject to an award by DOSH. 60.Section 2 and Section 38 WIBA contemplate occupational diseases broadly, and jurisprudence recognizes that classification is within the statutory mandate of DOSH, subject only to appeal. 61.At this stage, this Court is not sitting on appeal over classification or the award sought to be adopted, unless and until properly moved under Section 52 of the WIBA. 62.I therefore find that the Respondents’ challenge goes to the merits of the DOSH award, which is reserved for statutory appeal, and not adoption proceedings. 63.Further, the Respondents not having appealed under Section 52 WIBA nor sought to set aside the award through lawful process, the award remains valid and enforceable. 64.In conclusion, I make the following orders:-a.That the Preliminary Objection dated 5th January 2026 is dismissed.b.That the Motion dated 18th January 2026 is dismissed.c.That the Director’s Award dated 8th October 2025 is hereby adopted as a judgment of this Court.d.That the Applicant shall have the costs of the suit. 65.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.C. N. BAARIJUDGE.Appearance:Mr. Guda present for the ApplicantMr. Achillah present for the RespondentsMs. Esther S- C/A