https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1307

Imbo v Jumbo Quality Products Limited (Miscellaneous Application E004 of 2026) [2026] KEELRC 1307 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1307 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Miscellaneous Application E004 of 2026 Nzioki wa Makau, J May 19, 2026 Between Joannes Otieno Imbo Applicant and Jumbo Quality Products Limited Respondent Ruling 1.The Applicant instituted this suit via a Notice of Motion dated 22nd January 2026 seeking adoption of the DOSH award of Kshs. 830,200/- issued on 29th July 2025. He also prays for issuance of a decree for execution together with costs of the suit. The Application is premised on the grounds on its face as well as the Applicant’s supporting affidavit in which he deposes that after sustaining an occupational injury he suffered 60% permanent disablement and was awarded Kshs. 830,200/- by the Director Occupational Safety and Health. He contends that no appeal has been lodged against the award and despite demand for payment the Respondent has refused to pay necessitating the instant suit. To buttress its application the Applicant attaches a copy of the ML/DOSH Form 1 as annexture JOI-2, treatment notes as JOI-3 and DOSH assessment form issued on 29th July 2025 as JOI-4. 2.The Application is opposed through a replying affidavit sworn by one Avnish Valand, the Respondent’s Accounts Officer. He acknowledges that the Respondent indeed received the DOSH assessment and subsequently forwarded the same to its insurer, which arranged for the Applicant to undergo a second medical examination. According to the Respondent, the second medical examination revealed that the Applicant had suffered 0% permanent disability, following which DOSH issued a revised assessment indicating that the Applicant’s entitlement stood at Kshs 0/-. On that basis, the Respondent contends that the Application is devoid of merit as it is founded on an assessment that has since been revised. In support of its position, the Respondent annexes the letter referring the Applicant for a second medical examination as annexture AV-4, the second medical report as annexture AV-5, and the revised DOSH assessment as annexture AV-6. 3.The Application was canvassed by way of written submissions, with only the Respondent filing submissions. Respondent’s Submissions 4.In opposing the Application, the Respondent identifies the following issues for determination:a.Whether the Motion is legally maintainable in light of the revised DOSHS/WIBA assessment indicating 0% Permanent Partial Disability (PPD) and compensation of Kshs 0/-;b.Whether this Court can grant the prayers sought where the Applicant’s claim is anchored on a superseded and/or revised administrative decision, or where the statutory process under the Work Injury Benefits Act (WIBA) has not been properly invoked; andc.Who should bear the costs of the said Motion 5.On the first issue the Respondent submits that the application should be struck out for being founded on an assessment that has since been revised to 0% permanent disability and Kshs 0 compensation. It asserts that the only recourse left for the Applicant is to invoke the objection and appeal framework under WIBA rather than insisting on enforcement of a defunct award. The Respondent cites section 51 and 52 of WIBA. It also relies on Kivuli v Professional Marketing Services Limited [2025] KEELRC 681 (KLR), where the Court declined to intervene while the Director’s process remained incomplete, emphasizing the appellate posture of the Court under WIBA. The Respondent further cites Abubakar v Modern Coast Builders and Contractors Ltd [2022] KEELRC 13245 (KLR) and Odhiambo & another v Quale Holdings Ltd t/a Guyana Guest House [2022] KEELRC 13010 (KLR), for the proposition that the Court only enforces Director’s awards where such awards are final and unchallenged, and do not reopen questions of liability and quantum. The Respondent therefore maintains that, in the circumstances of this case the earlier assessment having been revised, there exists no subsisting liquidated award capable of enforcement. 6.In view of the revised assessment the Respondent submits that the Applicant is attempting to improperly compel payment outside the statutory review mechanisms under WIBA which should not be countenanced. They rely on the case of Wambugu v Director, Occupational, Health and Safety Services & another [2023] KEELRC 62 (KLR), where the Court emphasized that even where parties are seeking mandamus or supervisory relief, they must invoke the proper judicial review procedure failing which the application is incompetent. In conclusion the Respondent urges the court to dismiss the application with costs. Disposition 7.The application before the Court gives the Court pause. The DOSH form showed injuries to the left hip joint and anterior chest of the employee. He was indicated to be unable to carry heavy loads. He suffered pelvic and spinal injury due to an injury resulting from the road traffic accident. From the report of the doctor at Jaramogi Odinga Oginga Teaching and Referral Hospital (JOOTRH) Dr. Moses Opondo a consultant physician, the medical treatment reports are consistent with the injury reported. 8.The Respondent seems to have illegally caused the review of the DOSH Form filed by the Respondent resulting in an award of Kshs. 0/- to the Applicant. This cannot be countenanced by the Court as the process embarked on by the Respondent was outside the law. The Work Injury Benefits Act provides for a review by the Director within 14 days of the award. There was no such review and any attempt to review the award by anyone in the office of the Director past that date is illegal, null and void. That being the case, it is inevitable that the injuries sustained by Mr. Joanes Imbo be compensated in line with the original assessment issued by the Director. The Applicant was declared redundant on 2nd March 2025 by the Respondent on account of ill health per their letter of 2nd March 2025 signed by Mr. Avnish Valand. Surely this isn’t the same employee who suffered 0% disability. I therefore reject as unlawful the illegal amendment of the DOSH form in respect of the Applicant as there was no appeal to the Director Occupational Safety and Health in terms of section 52(1) of the Work Injury Benefits Act. 9.The foregoing is ample that there is merit in the application. The Application is allowed in the following terms:a.The Court grants the adoption of the DOSH award of Kshs. 830,200/- issued on 29th July 2025 to be paid within 14 days of today.b.The Applicant shall have the costs of the application assessed at Kshs. 50,000/-.c.Should the Respondent not make payment within 14 days of today interest will be applied on the sum in (a) above at 14% per annum from the date of award being 29th July 2025 till payment in full.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF MAY 2026NZIOKI WA MAKAU, MCIARB.JUDGE