[2019] KEELRC 1043 (KLR)
The court found that the claimant was entitled to payment of the sum assessed by the Director of Occupational Safety and Health Services, as the respondent failed to appeal the assessment or provide a legitimate reason for non-payment. The respondent's absence at the hearing and failure to challenge the assessment...
Source-derived case information.
- Citation
- [2019] KEELRC 1043 (KLR)
- Parties
- Claimant: John Waititu Macharia; Respondent: Board of Trustees Archdiocese of Nyeri
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 86 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- AN Makau
- Legal Topics
- Workplace Injury, Compensation Assessment, Employer Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Waititu Macharia
Claimant
Board of Trustees Archdiocese of Nyeri
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent was obligated to pay the claimant the sum assessed by the Director of Occupational Safety and Health Services.
- 2 Whether the respondent's failure to appeal the assessment precluded it from denying liability.
- 3 Whether the claimant was entitled to compensation, costs, and interest.
Ratio Decidendi
The court found that the claimant was entitled to payment of the sum assessed by the Director of Occupational Safety and Health Services, as the respondent failed to appeal the assessment or provide a legitimate reason for non-payment. The respondent's absence at the hearing and failure to challenge the assessment meant the claimant's evidence was uncontroverted. The statutory framework under the Work Injury Benefits Act requires employers to pay assessed compensation unless an appeal is properly lodged. The respondent's failure to comply with this process rendered it liable for the assessed sum, together with costs and interest as claimed by the claimant.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs. 396,000/-.
- The respondent shall pay costs of the suit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 86 OF 2017
JOHN WAITITU MACHARIA................................................CLAIMANT
VERSUS
BOARD OF TRUSTEES ARCHDIOCESE OF NYERI...RESPONDENT
JUDGMENT
1. The Claimant herein was injured at work and after the accident was reported to the Director Occupational Safety and Health, the Director assessed the injury at Kshs. 396,000/- on 24th September 2013. The Claimant avers that the Respondent failed and/or refused to make good the payment. He thus seeks for a judgment for the payment of the sum of Kshs. 396,000/-, costs of the suit and interest.
2. The Respondent in its defence denied the Claimant’s claim and averred that the injury was caused largely or solely by the Claimant on account of his carelessness. The Respondent averred that the Claimant was therefore not entitled to the award and put him to strict proof on the averments that he was entitled to the amount and heaped the blame on him for causing the accident.
3. The Claimant was the only one who participated in the hearing as the Respondent failed to turn up on the date set for hearing. He adopted his statement and asserted that the amount that was assessed by the Directorate of Occupational Safety and Health Services was unpaid despite the Respondent being notified of the sum due. He produced the LD 104 Form as well as the DOSH/WIBA 4 addressed to the Respondent which is the demand for payment issued by the Directorate of Occupational Safety and Health Services.
4. The Claimant was entitled to receive payment the moment the matter was dealt with by the Director and assessed. If the Respondent was unwilling to pay for whatever legitimate reason, an appeal against the decision of the Director should have been preferred at first instance to the Director in terms of Section of the Occupational Safety and Health Act. Having failed to appeal the decision then it was only meet and just for the Respondent to pay the Claimant the assessed sum. In my view, the Claimant’s claim is merited as the Respondent failed to meet its obligations under the Work Injury Benefits Act. The Claimant is therefore entitled to a judgment against the Respondent for:-
i. Kshs. 396,000/-
ii. Costs of the suit
iii. Interest on the sum of Kshs. 396,000/- at court rates from 29th September 2013 till payment in full.
It is so ordered.
Dated and delivered at Nyeri this 23rd day of July 2019
Nzioki wa Makau
JUDGE
I certify that this is a true copy of the Original
Deputy Registrar