https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1904

Katiwa (Acting as the next friend of Dominic Wambua Katiwa) v Rabadia Enterprises Ltd & another (Miscellaneous Application E524 of 2025) [2026] KEELRC 1904 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1904 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E524 of 2025 CN Baari, J July 3, 2026 Between Jenniffer Nthenya Katiwa (Acting As The Next Friend Of Dominic Wambua Katiwa) Applicant and Rabadia Enterprises Limited 1st Respondent The Director of Occupational Safety & Health 2nd Respondent Ruling 1.Before Court is the Applicant’s application dated 16th December,2025, brought pursuant to Section 18 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Section 52(2) of the Work Injury Benefits Act, where the Applicant seeks the following orders: -i.Spentii.That the Applicant be granted leave to file an appeal out of time against the decision of the Director of Occupational Safety and Health Services delivered on the 7th day of January 2025 (and the subsequent objection determination dated 24th January 2025) in WIBA Claim Reference Number WIBA/MRG/03744/2024.iii.That the costs of this application abide the outcome of the substantive Appeal 2.The crux of the application is that Dominic Wambua Katiwa sustained severe injuries, including a skull fracture and internal bleeding, in a workplace accident on 5th December 2023 while employed by Rabadia Enterprises Ltd, resulting in permanent mental incapacity. The Applicant avers that despite a medical report assessing 60% permanent incapacity, the Director of Occupational Safety and Health (DOSH) determined that the employee had 0% permanent disablement and awarded no compensation in a decision dated 7th January 2025. 3.The Applicant states that her subsequent objection, lodged on 17th January 2025, was dismissed on 24th January 2025 without proper consideration. 4.The Applicant states that she received the objection decision by email on 14th February 2025, twenty-one days after it had been issued, and that the statutory 30 day period for filing an appeal under Section 52(2) of the Work Injury Benefits Act expired due to the delayed receipt of the decision, the need to secure legal representation, and the demands of providing continuous care to the mentally incapacitated employee. 5.The Applicant contends further that the delay was not deliberate but resulted from circumstances beyond their control, including the Applicant's need for round the clock care, financial constraints, and the late communication of the objection decision. 6.The Applicant further maintains that the intended appeal is arguable, as it challenges the rejection of medical evidence in assessing the Applicant’s incapacity at 60% and the failure to award compensation for serious work related injuries. 7.The Applicant also asserts that granting leave to appeal out of time would not prejudice the Respondents, who would have a full opportunity to respond to the appeal on its merits. 8.The Applicant contends that, in the interests of justice and fairness, she should be granted leave to pursue the appeal out of time so that the permanently incapacitated Applicant may have the opportunity to seek the compensation to which he is lawfully entitled. 9.The 1st Respondent opposed the application vide grounds of opposition dated 16th March, 2026. 10.The Respondents contend that the Court lacks jurisdiction under Section 52(2) of the Work Injury Benefits Act to grant the orders sought and that the application dated 16th December 2025 is legally untenable and unknown in law. 11.The 1st Respondent further avers that the application herein is misconceived, erroneous, fatally and incurably defective, and an abuse of the court process. 12.The 2nd Respondent did not oppose the application. 13.Parties canvassed the application by written submissions, which were received and have been duly considered. Determination 14.Having considered the application, the grounds and affidavit in support, the Grounds of Opposition filed by the 1st Respondent, and the applicable law, the principal issues falling for determination are:-i.Whether this Court has jurisdiction to grant leave to file an appeal out of time under Section 52(2) of the Work Injury Benefits Act, and if so,ii.Whether the Applicant has established sufficient cause for the exercise of that discretion. 15.Section 52(2) of the Work Injury Benefits Act, 2007 (WIBA) provides:-“An objector may, within thirty days of the Director's decision on the objection, appeal to the Industrial Court against such decision." 16.The foregoing provision prescribes the period within which an appeal is to be lodged, but is silent on the consequences of failure to appeal within the stipulated period and does not expressly prohibit the Court from enlarging time. 17.The 1st Respondent’s argument is that this Court lacks jurisdiction to enlarge time under Section 52(2) of WIBA. Jurisdiction, they say, flows from the Constitution and statute, and the court cannot assume jurisdiction that is not expressly given by law. This principle was firmly stated by Nyarangi JA in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, where the Court held that jurisdiction is everything and, without it, a court must down its tools. 18.The question, therefore, is whether the Employment and Labour Relations Court possesses statutory authority to enlarge time in matters falling within its appellate jurisdiction. 19.Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024, states thus on enlargement of time:-“The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.” 20.Further, Section 3 of the Employment and Labour Relations Court Act enjoins the Court to facilitate the just, expeditious and proportionate resolution of disputes, while Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 21.In Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No. Nai. 255 of 1997, the Court held that the guiding considerations in extending time are the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and the degree of prejudice to the respondent. 22.Applying the foregoing principles to the present case, the Applicant explains that although the objection was determined on 24th January 2025, she only received the decision on 14th February 2025, leaving a significantly reduced period within which to institute an appeal. She further attributes the delay to the need to secure legal representation, financial constraints, and, more significantly, the continuous care required by the injured employee, who allegedly suffered permanent mental incapacity following severe workplace injuries. 23.This Court is satisfied that those explanations have not been controverted by any evidence. The 1st Respondent merely raises a jurisdictional objection and does not dispute that the objection decision was received after its date of delivery or that the employee sustained serious injuries requiring constant care. 24.The Court also notes that the intended appeal raises arguable questions, such as the assessment of permanent incapacity, the grounds of which cannot be said to be frivolous or hopeless. 25.Equally, the Respondents have not demonstrated any specific prejudice that would be occasioned to them by allowing the appeal to be filed out of time. Any prejudice, in my view, can be adequately addressed through their participation in the appeal on its merits. 26.Accordingly, this Court finds and holds that Section 52(2) of the Work Injury Benefits Act does not expressly oust the Court's power to enlarge time, and the Applicant herein has demonstrated sufficient cause to warrant the exercise of the Court's discretion in this respect. 27.Accordingly, the application dated 16th December 2025 is found to have merit, and leave is hereby granted to the Applicant to file the intended appeal out of time and to do so within fourteen (14) days from the date of this ruling. 28.The costs of the application shall abide the outcome of the substantive appeal. 29.It is so ordered. SIGNED, DELIVERED, AND DATED AT NAIROBI THIS 3RD DAY OF JULY, 2026C. N. BAARIJUDGEAppearance:Mr. Kangogo present for the ApplicantMs. Anyango present for the 1st RespondentMs. Esther S - Court Assistant