https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1308

Korir v Director of Occupational Safety and Health Service (Nairobi Headquarters) & 2 others (Petition E007 of 2025) [2026] KEELRC 1308 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1308 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Petition E007 of 2025 DN Nderitu, J May 14, 2026 IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 25, 35, 41, 47, 48, 50 & 162 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ENFORCEMENT OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 19, 20, 21, 22, 23, 35, 41, 47, 48, 50 & 162 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF VIOLATION OF THE RIGHT TO A FAIR HEARING, THE RIGHT TO ACCESS TO INFORMATION AND THE RIGHT TO FAIR LABOUR PRACTICES AND IN THE MATTER OF THE ENFORCEMENT AND PROTECTION OF THE CONSTITUTION OF KENYA, 2010 Between Wilson Kiprotich Korir Intended Objector and Director of Occupational Safety and Health Service (Nairobi Headquarters) 1st Respondent Minister for Labour and Social Protection 2nd Respondent The Hon Attorney Genera 3rd Respondent Judgment I. Introduction 1.The Petitioner commenced these proceedings by way of a petition dated 26th February 2025 through MC Advocates seeking for the following reliefs –a.This Honourable court be pleased to order that the lack of communication by the 1st respondent led ot breach of the petitioner’s right to a fair hearing, access to information and fair labour practices as provided for by Articles 50, 35 and 41 respectively of the Constitution of Kenya, 2010.b.This Honourable court be pleased to issue an Order of Certiorari to remove and bring to this court for purposes of quashing the decision of the 1st respondent dated 3rd December 2012 by Mr James Wamae.c.That upon grant of prayer b above, the Honourable Court do award the relevant appropriate award based on the medical evidence available in court and the Work Injury Benefits Act.or in the alternatived.That the Honourable court be pleased to extend the time within which the applicant is to file an objection against the decision dated 3rd December 2012 by Mr James Wame as provided for by Section 51 of the Work Injury Benefits Act, and the annexed objection be deemed duly served upon service on the Director of the Directorate of Occupational Safety and Health Services in Nairobi Headquarters. 2.The petition is said to be anchored on Articles 2(i) & (4), 3, 27, 35, 41, 47, 50, 258 & 259 of the Constitution. 3.The petition was accompanied with a supporting affidavit sworn by the petitioner on even date with two annexures thereto. 4.The petition was accompanied with a notice of motion application under certificate of urgency, through which the petitioner was seeking for orders –i.Spentii.That pendidng hearing and determination of the application filed herein., the honourable court be pleased to extend the time within which the applicant is to file an objection against the decision dated 3rd December 2012 by Mr. James Wamae as provided for by Section 51 of the Work Injury Benefits Act and the annexed objection be deemed duly served upon service on the Director of the Directorate of Occupational Safety and Health Services in Nairobi Headquarters.iii.That pending hearing and determination of the petition filed herein, Honourable court be pleased to extend the time within which th applicant is to file an objection against the decision dated 3rd December 2012 by Mr. James Wamae as provided for by Section 51 of the Work Injury Benefits Act and the annexed objection be deemed duly served upon service on the Directorate of Occupational Safety and Health Services in Nairobi Headquarters.iv.That Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances of this case.v.That the costs of this application do abide the outcome of the intended objection. 5.When the matter came up for directions on 19th March 2025, the parties consented to abandoning the application, and the same was accordingly marked as such with no orders as to costs. The parties further consented that the petition be canvassed by way of written submissions. 6.The facts and the law relied upon are set out in the body of the petition. 7.The Respondents entered appearance through the office of the Attorney General and filed a replying affidavit sworn by Justus Bosire Nyakego, the Deputy Director of Occupational Safety & Health, on 16th April 2025. 8.Counsel for the petitioner, Mr Otieno, filed written submissions dated 3rd September 2025. The Counsel for the respondents, Mr Nyauma, filed submissions dated 20th January 2026. II. The Petitioner’s Case & Evidence 9.In summary, the Petitioner avers that he is a serving police officer who sustained serious injuries in a road accident on 3rd March 2010 while performing his official duties. Following the accident, he completed and submitted the required Directorate of Occupational Safety and Health Services (DOSH) forms through his employer, the National Police Service, in order to pursue compensation under the Work Injury Benefits Act (WIBA). 10.The Petitioner states that DOSH processed the claim and made a decision on 3rd December 2012. However, he contends that the said decision was never communicated to him. According to the Petitioner, he only became aware of the existence of the decision in February 2025 when he was following up on possible benefits from the National Treasury and sought access to his personal police service records at the Police Headquarters in Nairobi. Upon reviewing his file, he discovered that the decision had been placed there without any evidence that it had been formally served or communicated to him. 11.The Petitioner maintains that there is no acknowledgement, signature or, proof of service demonstrating that he received the decision. He therefore disputes the Respondents’ position that the decision was communicated to him and asserts that the failure to notify him deprived him of the opportunity to challenge or object to the decision within the statutory timeline provided for under Section 51 of WIBA. 12.The Petitioner contends that the Respondents’ failure to communicate the decision violated his constitutional rights, particularly the right to access information under Article 35 of the Constitution, the right to fair labour practices under Article 41 of the Constitution and, the right to a fair hearing under Article 50 of the Constitution. 13.He therefore seeks for a declaration that his constitutional rights were violated, an order of certiorari to quash the decision of the DOSH dated 3rd December 2012, and, an appropriate award based on the medical evidence and the provisions of WIBA or, in the alternative, an extension of time to file an objection against the said decision so that the objection may be heard and determined on its merits in the interest of justice. III. The Respondents’ Case & Evidence 14.In their joint replying affidavit, the Respondents state that DOSH received the Petitioner’s accident notification relating to the accident of 3rd March 2010 in the prescribed form ML/DOSH Form 1 in the year 2012, although the notification was lodged outside the statutory period provided under Section 22 of WIBA. The notification was accompanied with several medical documents relating to the injuries sustained by the Petitioner. 15.According to the respondents, the medical report contained in Part II of the DOSH Form 1, completed by a primary medical practitioner, indicated that the Petitioner had no permanent incapacity arising from the injuries sustained in the accident. The Petitioner was further examined on 22nd October 2012 at the Work Injury Evaluation Clinic, where a panel of doctors also assessed him and concluded that he had 0% permanent incapacity. 16.Based on the medical assessment showing 0% permanent incapacity, DOSH computed the claim pursuant to the provisions of WIBA and determined that no compensation was payable to the Petitioner. Consequently, a letter dated 3rd December 2012 was issued communicating the decision to the Petitioner’s employer and copied to the Petitioner informing him that no compensation was payable. 17.The Respondents further state that the Petitioner did not raise any objection or appeal against the decision within the statutory period of sixty (60) days as provided for under Section 51 of WIBA. According to the Respondents, more than thirteen (13) years have since lapsed without the Petitioner taking any steps to challenge the decision or seeking leave to file an objection out of time. 18.The Respondents, therefore, contend that the petitioner has failed to follow the statutory dispute resolution process under WIBA and has not provided any medical evidence showing that the injuries resulted to permanent or partial incapacity warranting compensation. The Respondents maintain that DOSH acted within the law, followed due procedure in determining the claim and, did not violate the Petitioner’s constitutional rights. 19.Accordingly, the Respondents urge the Court to find that the Petition is misconceived, lacks merit and, should be dismissed. IV. Submissions 20.Counsel for the Petitioner submitted on two issues – Whether the lack of communication of the final decision by the Director of Occupational Safety and Health Services led to breach of the petitioner’s rights to a fair hearing, access to information and fair labour practices as provided for by the Constitution of Kenya; and, Whether this Honourable court has powers to extend time for filing an objection where there are such constitutional breaches in paragaph 1 above. 21.On the first issue, it is submitted that the Constitution is the supreme law and binding on all state organs and public officers under Articles 2 & 3 and, that all actions of public bodies must comply with the constitutional principles of rule of law, transparency, accountability and, good governance under Article 10. 22.Citing Kidero & 4 others v Waititu & 4 others. [2014] KESC 11 (KLR), where the Supreme Court emphasized that the right to a fair hearing must be interpreted broadly to ensure full protection of constitutional rights, counsel submitted that by failing to communicate its decision to the petitioner, the DOSH denied the Petitioner the opportunity to challenge the decision through an objection or an appeal, thereby violating his right to a fair hearing under Article 50; the right to access information under Article 35; and, the right to fair labour practices under Article 41 of the Constitution. 23.Further, citing a plethora of decisions, among them, – Raila Odinga v IEBC & Others [2013] eKLR and Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 Others [2014] eKLR, it is submitted that pursuant to Article 159(2)(d) of the Constitution courts should prioritize substantive justice without undue regard to procedural technicalities. On that basis, the petitioners urge the Court to allow the draft objection to be deemed as properly filed so that the matter may be determined on its merits rather than being deemed defeated by statutory timelines under Section 51 of the WIBA. 24.On the second issue, it is submitted that this Court has the power to extend time for filing an objection where constitutional rights have been violated. Reliance is placed on Sumayya Athmani Hassan v Paul Masinde Simidi & Another [2019] KECA 107 (KLR) where the Court cited Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR with approval in asserting that this court has jurisdiction to enforce not only labour rights under Article 41 of the Constitution, but also ancillary constitutional rights arising in employment and labour relations matters. It is contended that allowing administrative decisions affecting work injury claims to remain uncommunicated would undermine the principles of fair labour practices and access to justice. 25.The court is urged to find that the failure to communicate the Director’s decision dated 3rd December 2012 violated the Petitioner’s constitutional rights to fair hearing, access to information and, fair labour practices. 26.On the other hand, the Respondents’ counsel submitted on the two issues raised by the Petitioner. On the first issue, it is submitted that the Petitioner reported an occupational accident that allegedly occurred on 3rd March 2010, through DOSH Form 1, which was received in 2012, long after the expiry of the statutory period provided for under Section 22 of WIBA. Despite the late notification, the DOSH nonetheless processed the claim. 27.The Respondents further state that the matter was subjected to medical assessment and the medical panel returned a finding of 0% permanent incapacity. According to the Respondents, the Petitioner was therefore aware of the process and had an opportunity to lodge an objection, if dissatisfied, but he failed to do so within the provided statutory period. 28.The Respondents submitted that the Petitioner has not demonstrated any efforts for he made, approximately 12 years, to follow up or obtain information regarding the claim. Consequently, the allegation that the decision was never communicated to him is unfounded. 29.On the second issue, it is submitted that while the Court has discretionary powers to extend time, such discretion must be exercised cautiously and based on the facts and circumstances of each case. 30.The Respondents contend that the accident occurred over 15 years ago yet the Petitioner is now relying on medical reports dated between 2020 and 2024, which are far removed from the time of the alleged injury. According to the Respondents, this raises suspicion and demonstrates a late attempt to revive a stale claim. 31.The Respondents further argue that allowing the extension of time shall prejudice the Respondents since the passage of time has altered the circumstances surrounding the claim making it difficult to arrive at a fair assessment of the same. 32.The respondents urge the Court to dismiss the Petition on the grounds that the claim was processed in accordance with the WIBA; the petitioner failed to lodge an objection within the statutory timelines; the petitioner delayed for more than a decade before pursuing the matter; and that granting an extension of time shall prejudice the Respondents and shall not serve the interests of justice. V. Issues For Determination 33.The court has carefully and dutifully gone through the petition and the supporting affidavit and the annexures thereto by the petitioner, the replying affidavit by the respondents and, the submissions by the respective counsel for the parties. 34.The following issues commend themselves to the court for determination –a.Whether the petitioner was informed of the decision of DOSH dated 3rd December 2012.b.If the decision was not communicated were the rights of the Petitioner under Articles 35 & 50 of the Constitution violated?c.Whether sufficient evidence has been presented to warrant the grant of an order Certiorari as pleaded?d.Whether the court has the power to extend time for the filing of an objection by the petitioner outside the statutory timelines.e.Costs. VI. Notification Of Award 35.The Petitioner contends that the DOSH failed to communicate the decision made on 3rd December 2012 regarding his work injury compensation claim. He states that he only became aware of the said decision in February 2025 when he perused his personal file at the Police Headquarters. According to the petitioner, the failure to communicate the decision denied him an opportunity to lodge an objection or appeal against the said decision. 36.The Respondents on their part refute the petitioner's assertion and assert that after the Petitioner attended a Work Injury Evaluation clinic on 22nd October 2012, a report was issued by the panel of doctors declaring 0% permanent incapacity. The Respondents contend that the letter dated 3rd December 2012 was copied and sent to the petitioner’s last known address. Further, they contend that it was the Petitioner who failed to file an objection and 13 years have lapsed since the said decision was made, without any objection or appeal by the Petitioner. 37.The court has reviewed the documents adduced by the parties and, apart from the letter dated 3rd December 2012 being copied to the petitioner, there was no evidence in the form of a delivery register or postage receipt to prove that indeed the petitioner was served with the decision of DOSH. The petitioner agreed that he filled out the DOSH forms and thus the address details therein were his details. The Respondents, apart from stating that the decision was sent to the petitioner, did not provide proof that the same was sent to his address. The Petitioner stated that he only found the copy of the DOSH Award in his personal file held by the Police Headquarters. 38.The court finds and holds that in the absence of concrete proof that the decision was indeed sent to the Petitioner’s address, his right to object or appeal lapsed and he could not present his case. That violated his right to a fair hearing and adjudication of his claim under Article 50 of the Constitution. 39.On whether the failure to communicate the award to the Petitioner violated the Petitioner’s right to access information under Article 35 of the Constitution, the courts opines that for one to prove infringement if the right to information he/she must have lodged a complaint in writing as contemplated under Section 22 of the Access to Information Act with the Commission of Administrative Justice (the Commission), to complain that a public or private entity has refused to furnish him/her with the requested documents/information. There is no proof that the Petitioner made any request for the decision from DOSH for the alleged violation of his right to access to information to accrue. In any case, the court’s jurisdiction as relates to the right to information under Article 35 of the Constitution and as contemplated in the Access to Information Act is to hear appeals from the decision of the Commission and not as an adjudicator of the first instance as sought by the petitioner. 40.The Petitioner did not in the period from 2012 to February 2025 make a request for the details of the award. 41.Under Section 51 of WIBA, any person aggrieved by a decision of the Director on any matter may, within 60 days of such decision, lodge an objection with the Director against such decision. In this instant petition based on the evidence presented, the time to lodge an objection or appeal the decision lapsed on 1st February 2013. 42.What then would be the recourse for the Petitioner after the time to object or appeal had lapsed? The court has to consider the next issue to determine whether the Petitioner has made a case for the orders sought to issue. VII. Certiorari 43.The Petitioner urges the court to issue an order of Certiorari to quash the award by DOSH of 3rd December 2012, premised on his assertion that despite DOSH assessing on him 0% disability, medical evidence allegedly show that the injuries he suffered have greatly affected him over the years. The court is thus asked to quash the award by DOSH and issue an appropriate award. 44.In Charles v Cheto [2025] KECA 784 (KLR) (SG Kairu, KI Laibuta, GWN Macharia), the Court of Appeal opined as follows –“ 49.In this case, the learned Judge correctly observed that sections 51 and 52 of the WIBA are silent on the avenues for redress for a party who becomes aware of the proceedings before the Director after the time for lodging an objection and/or filing an appeal against the Director’s decision has already lapsed. We agree with the learned Judge that the solution in such circumstances would be to lodge a Motion for Judicial Review to quash the award before adoption by the court, and on first seeking to have the adoption proceedings stayed. Notably, the appellant sat back and took no steps to that end. 50.The remedy identified by the learned Judge appears to be the only viable course of action in the circumstances. The appellant, who took no steps to seek judicial review of the Director’s award, was misdirected in seeking to present a case for what he misperceived as breach of his constitutional right to a fair hearing, a claim that came too late in the day. Likewise, any attempt to seek leave of the ELRC to file objection proceedings out of time, and to stay adoption proceedings pending the intended objection, would also amount to a futile attempt to invoke the court’s jurisdiction, which only arises on an appeal against a Director’s written reply to an objection. In the present case, the respondent’s suit was essentially in the nature of adoption proceedings, which stood to succeed in the absence of any objection by the appellant to the Director’s award” (Emphasis Added) 45.While the Petitioner has sought the judicial review order of certiorari, the same has been sought over 12 years since the DOSH decision was made. Under Rule 6 of the Fair Administrative Action Rules, 2024 – ‘An applicant intending to apply for the quashing of an administrative action or decision shall commence judicial review proceedings before a court within six weeks after the date the administrative action was taken’ (Emphasis added). The award by DOSH was issued on 3rd December 2012 and six weeks thereafter lapsed on or about 14th January 2013. 46.By dint of Rule 6(2) of the Fair administative action Rules – The court may, on the written application by an applicant, extend the time for lodging a judicial review application where it is proved to its satisfaction that the applicant was prevented, through fraud or misrepresentation, from getting to know of the administrative action or decision or could not, despite exercise of diligence, have known of the administrative action or decision sought to be quashed. (Emphasis Added) 47.For the period from 2012 5o 2025 the Petitioner has not demonstrated any steps that he took in due diligence to establish the status of this claim with DOSH. Likewise, he has not demonstrated fraud or misrepresentation by the Respondents and or any other person that may have prevented him from pursuing his claim. The Petitioner is guilty of indolence. 48.Further the court finds that this petition was filed and presented way out over reasonable time due to inaction and inordinate delay on the part of the Petitioner. VIII. Extension Of Time To File Objection 49.The Petitioner has prayed that the court, in the alternative of reviewing the award, extend the time within which he may file an objection against the decision by DOSH of 3rd December 2012. 50.In Charles v Cheto [2025] (supra) the court held that the jurisdiction over WIBA matters only arises on an appeal against a Director’s written reply to an objection under Section 52 of WIBA. Consequently, the court has no jurisdiction to extend time to file an objection out of the statutory period of 60 days. 51.Further, even if the court had jurisdiction to extend time beyond the 60 days which is not the case, there has been unreasonable and inordinate delay by the petitioner in presenting and filing this petition. 52.Consequently, the petition herein is hereby dismissed for want of merits. IX. Costs 53.No orders as to costs X. Orders 54.The court makes the following orders –a.The petition dated 26th February 2025 is dismissed for want of merits.b.There is no order as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 14TH DAY OF MAY 2026.……………………DAVID NDERITUJUDGE