https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2394

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E074 OF 2025** BETWEEN MAKOMBOKI TEA FACTORY LIMITED.……………...… APPELLANT AND JAMES MUHIA MWAURA………………..………………...RESPONDENT (Being an appeal arising from the judgment and decree and orders of Hon. L. Nabibya (SPM) dated 19th February, 2025 in Thika CMELRC MISC. APP. NO E001 of 2024.) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Amended Memorandum of Appeal dated 18th June 2025 and Supplementary Memorandum of Appeal dated 20th June, 2025 the Appellant appeals against the whole ruling/Order of Hon. L. Nabibya(SPM) sitting at Thika on 19th February,2025. The Appellant stated that the Appeal related to interpretation of Section 51 of the Work Injury Benefits Act. The decision Appealed against was the adoption and enforcement of the WIBA assessment dated 27/06/2023. 2. The Appeal was based on the grounds that: * 1. *The Learned trial magistrate erred in law and fact in disregarding, dismissing and/or failing to consider and allow the Appellant's application dated 16/08/2024.* 2. *The learned trial magistrate* *erred in law and in fact in misapprehending the Appellant’s Application dated 16/08/2024 as a response to the Respondent’s Application 8/02/2024.* 3. *The learned trial magistrate erred in law and in fact in failing to remit the matter back to the Director of Occupational Health and Safety Services (DOSH)for hearing of the objection by the Appellant and reassessment of disability suffered and the sum payable.* 4. *The learned trial magistrate erred in law and in fact in failing to determine whether or not the Appellant was properly served or notified of the assessment by the DOSH and the effect of want of service.* 5. *The Learned trial Magistrate erred in law and in fact in allowing the Respondent's application dated 8/02/2024.* 6. *The Learned trial Magistrate erred in law and in fact in disregarding the issues raised by the Appellant in its submissions.* 3. The Appellant prayed that the Judgment/ decree of the lower court be reviewed and or set aside and the claim be remitted back to the Director of Occupational Health and Safety Services Murang’a for hearing of the Appellant’s objection to the assessment by the Director and re-assessment of disability suffered with the Respondent bearing the cost of the Appeal. 4. The Respondent in opposition filed his notice of grounds of opposition dated 17th April, 2025 and averred that: * 1. *The Plaintiff’s suit was res-judicata, misconceived, incompetent, mischievous, bad in law and a blatant abuse of the court process and should be dismissed outright ex-debito justiae with costs. As the same is riddled with blatant untruths and deliberate non-disclosure of material facts, intended to mislead the court.* 2. *The suit herein has been filed by the Appellant/Applicant even after a similar suit and application for stay was heard and dismissed on merit by a court of competent jurisdiction on 31st July, 2024 in Nyeri ELRC Misc. Application Number E002 of 2024* 3. *The issues being raised by the Appellant/Applicant are similar to the ones raised in Nyeri ELRC Misc. Application Number E002 of 2024 which was heard by a court of competent jurisdiction and dismissed on merit therefore effectively determining the same and the Appellant/Applicant cannot therefore legally seek similar orders in blatant and fragrant abuse of the court process, law and procedure*. 5. The Respondent in addition filed Replying Affidavit to this Appeal sworn on 11th April, 2025 who averred as follows: - * 1. *That the Appellant/ Applicant herein has filed an application for the ruling in Thika CM ELRC NO. EOOl OF 2024 be stayed pending the hearing and determination of the Appeal.* 2. *That the said Application is Resjudicata as the same was struck out with costs in Misc. Application No. E002 Employment and Labour Relations Court at Nyeri.* 3. *That he personally served the Appellant/ Applicant herein with the said assessment and award physically on 27thJune 2023 and the same was received by one Julia Wanjiku who refused to stamp on his copy.* 4. *That the Appellant/Applicant's herein had 60 days after notification of the award by the Dosh Director to lodge an appeal which is to be determined within 14 days of the objection as per section 52 of the WIBA Act.* 5. *That the Applicant also states that they were not served with the Dosh award yet they secured a 2nd medical exam based on the award. The Respondent herein was injured on 17th December 2021 and served the Applicant with the notice of the award on 27th June 2023. The Applicant's insurer then scheduled a 2nd medical exam on 20th September 2023 almost three months after service of the Dosh award hence them claiming that they only became aware of the said award through the Respondent's Application dated 8th February 2024 was false.* 6. *That the Appellant/ Applicant's failure to challenge the assessment within the prescribed timeline under sections 51 and 52 of WIBA Act, this court lacks jurisdiction to remit the assessment back to DOSH for reconsideration as the time provided for under sections 51 and 52 of WIBA Act has already lapsed and the director has since become functus officio.* 7. *This honorable court has discretionary jurisdiction to grant stay orders and this should be exercised carefully by the court striking a balance between the rights of the Applicant and those of the Respondent. In the circumstances at hand, the Applicant has not demonstrated with conviction or adduced prima facie case of the irreparable loss that would be suffered if the said stay is not granted.* 8. *The Appellant/Applicant is "forum shopping" noting that the instant application herein was already determined by the High court in Nyeri ELRC which the Appellant/Applicant is well aware and still filed this instant Application and their sole intention is to delay the legitimate enjoyment of the fruits of my lawful judgment.* 9. *From the turn up of events above, the Appellant/Applicant is only working hard to delay the Respondent from enjoying the fruits of his award and the application herein is one of the techniques being used to waste the Courts time.* 10. *It is in the interest of justice that the Application be treated with the extreme prejudice as it deserves and that it be dismissed with costs.* 6. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates OG LAW LLP filed written submissions dated 16th March, 2026 and on the issues for determination counsel submitted that the question before the court was whether the trial court was justified in dismissing the Appellant’s Application for Judicial Review and allowing the Respondent’s Application for enforcing the DOSH award despite the issue of service being at the centre of the trial process. 2. Concerning the law on compensation for occupational injury or disease counsel relied on section 10 of the Work Injury Benefits Act, WIBA, which gives an employee the right to be compensated after sustaining an occupational disease or injury by the employer while at the work place or while on duty and submitted that the process for compensation is triggered by a report of the occurrence of the accident or affliction of the employee by the occupational disease to the Director under sections 21 and 22 of the WIBA. 3. The Director then conducts an inquiry pursuant to the powers donated to him/her under section 23 of the WIBA before determining the relief to award. The employee as provided under Section 25 of the WIBA is required to submit to a medical examination as required by the Director or by the Employer with the Directors approval. Once the award is made, the employer is obligated under section 26 (4) of the Act to settle the award within ninety (90) days of the claim. 4. Counsel submitted that where the employer is dissatisfied with the award, he/she may within 60 days of the award, lodge with the Director an objection against it. The Director will then determine the objection within 14 days in terms of section 52 of the Act. It was therefore clear that the employer has avenues to ventilate its issues, but the said channels are dependent on service. Where there is no service, the employer is then curtailed from exercising any remedy under the Act, since the statute has strict timelines that have no express provisions for extension of time. In this respect, reliance was placed on Court of Appeal’s decision in **James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)** on the assertion that where an order is made without service upon a person affected by it procedural cockups will not deter the court from setting aside such an order. The question therefore is where does a person who is aggrieved by the decision of DOSH but is not served with the said decision in time go to. Reliance was placed on the Court of Appeal in **Charles v Cheto [2025] KECA 784 (KLR)** where it was held that his remedy still lay in orders staying the respondent’s suit, and in filing a judicial review motion to quash the Director’s award. 5. In support of the Court of Appeals reasoning, Section 11 of the Fair Administrative Action Act provides for the remedies of judicial review including setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions. 6. On the issue of whether the learned magistrate erred in failing to consider the Appellant’s application dated 16/08/2024 counsel submitted that it is the Appellant’s case that it only came to know about the award when there were enforcement proceedings at the trial court. The Appellants moved court by a Miscellaneous Application where as Justice O.N Makau stated at Makomboki Tea Factory Limited v Mwaura [2024] KEELRC 2145 (KLR) stated that: *I wish to say that the said matters raised by the applicant herein ought to have been raised before the Thika Magistrates court where the Award by the DOSH was filed for adoption and enforcement. There is no appeal or judicial review proceedings before me. The application seeks substantive orders against an arbitrator without joining him to respond to the said accusation of procedural impropriety and irrationality. Having put all those matters into consideration, I find that the court has not been properly moved and I have no jurisdiction to grant the orders sought.* 1. The Appellant in compliance with the Justice Makau’s decision filed an application for stay of the enforcement proceedings in the magistrate court and for remission of the award to DOSH to allow it ventilate the merits of its concern before DOSH through the application dated 16/08/2026. That it is evident from the judgment that the trial court misconstrued the Appellant’s Application and treated the same as a response to the Respondent’s Application dated 08/02/2024 as can be seen in line 13 where the trial court states that the second Application essentially opposes the 1st Application. 2. The court went on to state; *It is undisputed that there was a valid award by DOSHS (sic) in favour of the Claimant.* 1. Counsel submitted that the Court made its finding without appreciating that the Appellant filed a Replying Affidavit sworn on 7/03/2024 at page 26 of the Record of Appeal. Both the Replying Affidavit and the Notice of Motion raised the issue of Service of the DOSH award at paragraph 3 thereof. At paragraph 4, the Appellant contested the degree of permanent disability by relying on a second medical report which was produced as exhibit MI 1 dated 20/09/2023. 2. It was submitted that the Court also misapprehended the Appellant’s Application and thought it sought Judicial Review orders founded on Articles 22, 23, 47, 48 and 50 of the Constitution as well as Section 7 and 8 of the Fair Administrative Action Act. The Appellant’s Application raised issues of natural justice following the deliberate failure to serve the DOSH award within the prescribed time of 60 days for filing an objection which called on the court to satisfy itself with the single issue of whether service was satisfactory or met the legal threshold. 3. Counsel submitted that the Respondent’s response to the issue of service can be deduced from the Respondent’s Replying Affidavit paragraph 5 wherein he states that he personally served the assessment and award on 27/07/2023 upon Julia Wanjiku. He does not state who this Julia Wanjiku is in relation to the Appellant. He does not state the time and place of service. There is no Affidavit of Service that was filed in court to verify these allegations. 4. There is however a demand letter produced as Respondent’s exhibit JMM 1 dated 30/01/2024 which was not received by the Appellant. To demonstrate the failure of service, the email correspondence produced as Respondent exhibit JMM 7 and Appellants exhibit MI 2 which sought a second medical opinion for the Respondent with a date of 20/09/2023. 5. It was submitted that if the DOSH award had been served by this time, it would have formed the subject of this email and the Appellant would not be scheduling a second medical assessment outside the 60 days of filing an objection. That the law on service seeks to serve a critical ingredient of natural justice by prescribing a procedure that would guarantee service. Rule 12 of the Employment and Labour Relations Court (Procedure) Rules, 2016, governs service on a corporate body which is that service upon a corporation, like the Applicant herein ought to be effected upon the secretary, the director or any other principal officer of the corporation before resorting to other modes of service. 6. It was submitted that the Respondent never effected service on the Applicant as alleged. It is unfortunate as well that he does not qualify as a process server to enable the Applicant to cross-examine him before this court to try and establish the truthfulness in his allegations. That nothing stopped the Respondent from contracting the services of a process server to enable him/her effect service as provided by the law. 7. Counsel further submitted that the mere fact that the assessment by DOSH was addressed to the Applicant does not automatically mean that service was effected upon the Applicant. The said assessment produced by the Respondent as exhibit JMM2 bears no stamp of the Applicant to show it was received. The assessment of the Respondent by the Director of Occupational Safety and Health Services dated 27/06/2023 was never served upon the Applicant for consideration in compliance with the Work Injury Benefits Act. Reliance was placed on the case of **Katumbi & another (Suing as the Administrators and Personal Representatives of the Estate of Boniface Kyungu Nzioka Deceased) v Kinyanjui [2023] KEELRC 3062 (KLR)** where the court addressed the procedural unfairness in the failure by DOSH to make a determination on an objection. Counsel urged the court to apply the same reasoning in this matter. 8. On the issue of whether the court has jurisdiction to grant an order setting aside the DOSH award, counsel submitted that it was evident that the Work Injury Benefits Act has a lacuna in the judicial processes that it prescribes. It grants a right to object against the DOSH award, but it limits the said right to 60 days from the assessment by the Director of Occupational Safety and Health officer under Section 51 and an Appeal to the Employment Court under Section 52 of the Work Injury Benefits Act. 9. That issue of when time starts to run becomes critical since it determines whether a person aggrieved by the DOSH award has room to contest the same. It cannot be said that the Work Injury Benefits Act should be interpreted to breach rules of natural justice as enshrined in Article 47 and 50 of the Constitution. Reliance was placed on Justice Ocharo in **Wambugu v Director, Occupational, Health and Safety Services & another (Miscellaneous Application E030 of 2022) [2023] KEELRC 62 (KLR) (20 January 2023)** where the Judge stated that the court has to look at the matter outside the Act, anchored on the inherent powers of the Court, as the justice of each case may demand. 10. Counsel submitted that this reasoning is at par with the provisions of the Fair Administrative Action Act, Section 11 which empowered the trial court to issue judicial review orders. Amongst the judicial review orders contemplated is the power to review and remit back a decision under section 11(h). 11. On the issue of what is the effect of failure to serve the DOSH assessment on the Applicant, counsel submitted that Work Injuries Benefits Act provides for two avenues that an aggrieved party must pursue to challenge the award assessed by the Director of Occupational Safety and Health Officer. The first opportunity is in Section 25 as was stated by Justice Nzioki wa Makau held in **Willys Injera v Trade Winds Aviation Services Ltd Nairobi Misc. Appl. No. E212 OF 2022** that submitting the employee for second medical assessment must be with the approval of the Director when the same is requested by the employer. 12. That the Appellant did indeed seek a second medical opinion seen at page 30 of the Record of Appeal. This medical report concluded that the Respondent suffered permanent incapacity at 5%. That this issue could only be resolved through Section 25 of the WIBA which clothes the Director Occupation and Safety with the authority to subject the Respondent to a second medical examination. In fact, the Applicant’s insurer, out of good faith and without knowledge of the presence of an award caused the Respondent to undergo a medical examination to ascertain the degree of permanent incapacity in a bid to compensate the Respondent. The same was assessed at 5% which was significantly lower than the assessment of 50% by Dr. Jacqueline Mwangi. Even at this point, the Respondent never pointed out to the Applicants insurer the fact that he had a decision from DOSH. 13. It was submitted that with the disparity between the two medical reports it is only substantively and procedurally fair that the process herein be referred back to DOSH to enable the Applicant to exhaust the available means of challenging the DOSH assessment. 14. It was submitted that the trial court misconstrued the Appellant’s Response that even when the Appellant tabled evidence of part settlement of the DOSH claim, the court treated the same as if the Respondent never received any monies. At page 45, the Appellant produced an image of the cheque banked on the 25/01/2024. The Respondent’s Replying Affidavit at page 46 of the Record does not deny that these monies were received. 15. That the trial court on the other hand misunderstood the admission at page 11 paragraph VI, where the Respondent admitted to receiving the sum of Kshs. 211, 022/-. The letter dated 30/01/2024 at page 15 of the Record of Appeal actually acknowledged receipt of the Kshs. 211,022 but raised a complaint that it was less than the DOSH award. In its ruling, the trial court awarded the entire DOSH award of Kshs. 1,958,600 which included the already received sum of Kshs. 211, 022. Counsel urged the court to make a finding that the Respondent had already received a portion of the decretal amount. **RESPONDENT’S SUBMISSSIONS** 1. The Respondent’s Advocates A.M Mwangi & Co. Advocates filed undated written submissions in 2026 and on the issue of whether there was no valid Objection to the Award and hence the claim should not be remitted back to Dosh counsel submitted that the Work Injury Benefits Act No. 13 of 2007 (the Act) prescribes that once the Director of Occupational Safety and Health (DOSH makes a decision, it may be validly challenged or dealt with under Sections 51 and 52. That Section 51 provides for objections and appeals against the decision of the DOSH within 60 days and that section 52 of the Act prescribes how an objection may be dealt with after it is lodged within 14 days and 30 days to appeal to ELRC once dissatisfied with the Director’s reply to the objection. 2. It was submitted that the foregoing provisions disclose a mandatory requirement in law that when an objection is filed, the DOSH has 14 days to determine and serve the objection upon all persons affected by his decision. In the absence of a valid objection decision, the DOSH's initial decision would stand. In this case, the Appellant did not file any objection and/or appeal to the Director's award and hence the same is uncontroverted. 3. On the issue of whether the judgement/decree of the honourable court should be reviewed and or set aside, counsel submitted that the Appellant herein was a party to the case and filed his documents together with his submissions and actively participated in the same case before the trial court that they seek its judgement to be reviewed or set aside. The fact that he was aggrieved by the ruling of the court does not warrant the same to be reviewed and or set aside. 4. Counsel submitted that the Appellant has not demonstrated any hardship or injury or loss they will incur on execution of the judgement that cannot be compensated by damages and costs and has failed to adduce just cause for grant of stay of execution and setting aside of a judgement entered in a case where they fully participated. Reliance was placed on the case of **Republic v Chairman, Cooperatives Tribunal & 8 Others Exparte Management Committee Konza Ranching & Farming Co-operative Society Ltd (2014) eKLR** on the issue of abuse of the court process. 5. It was submitted that the Appellant has no lead evidence of any prejudice or loss that may be occasioned on them that cannot be compensated by way of damages and as such the Application does not meet the threshold required for it to be granted as it is devoid of merits. The Appellant's application is therefore misconceived, scandalous, frivolous an utter abuse of the solemn court process and should be treated with extreme prejudice it deserves. It is in the interest of justice that the Application be dismissed with costs. **DETERMINATION.** The court has considered the Appeal, the record of Appeal and the submissions by the parties and observes that it is more or less settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** the same stated with regard to the duty of the first appellate court; *“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”* 1. In this case, the Ruling of the trial court was that the trial court dismissed the Appellant’s application and allowed the Respondent’s application for enforcement of the Director’s award of Kshs 1,959,600/= by adopting the same as the judgment and/or decree of the court with costs. 2. The Appellant was aggrieved by the above ruling and fronted six grounds of Appeal which this deems fit to reduce one main issue namely: * 1. *Whether the trial court erred in dismissing the Appellant’s application for remitting the matter to DOSH for re-assessment while allowing the Respondent’s Application for enforcement of the Director’s award as the judgment of the court.* 3. In this case, the DOSH awarded the Respondent an award of Kshs 4,577,352.00/= relying on its medical assessment of 50% permanent disablement on 27th June, 2023. The court notes that the Respondent was injured while at work on 17th December, 2021 a fact which is not in dispute. The Respondent alleged that she served the Appellant in person on 27th June, 2023 who refused to stamp on her copy while the same was received by one Julia Wanjiku. A demand of this amount was made to the Appellant on 30th January,2024 by her advocates which elicited no response. 4. The Appellant alleged that they came to know of the Director’s award in February 2024 when the enforcement proceedings ensued. They have relied centrally on the issue that they were never served with the Director’s award hence the reason why they never objected to the award vide section 51 of the WIBA Act or appeal the same in time as provided for under section 52 of the WIBA Act. 5. Interestingly the Appellant through its insurance booked the Respondent for a second medical examination in July 6th 2023 and was seen by the doctor on 20th September, 2023. This was after the Director’s award on 27th June, 2023. The second medical report then stated that the extent of permanent disability was at 5% instead of that awarded by the Director at 50% and the Appellant issued a post-dated cheque of Kshs 211,022/= in January, 2024 which they stated was commensurate with the injuries suffered. 6. Whereas the Appellant alleged that they were not aware of the Director’s award the court wonders why they were subjecting the Respondent to a second medical examination when the same would only be undertaken with approval of the Director under section 25 of the WIBA Act. In addition, why did the Appellant respond to the Respondent’s advocates letter dated 30th January, 2024 requesting for the DOSH award? 7. Whereas the same issues were raised by the Appellant in ***Nyeri ELRC Misc. No E002 of 2024*** and Hon. Justice Onesmus Makau noted that the court was not properly moved vide an appeal or Judicial review so the court downed its tools for lack of jurisdiction but noted that the substantive orders sought by the Appellant, ought to have been against the arbitrator who was not enjoined as a party in the suit. Just like the Nyeri Court this court notes that the Director of the DOSH is not a party to these proceedings and since substantive orders were sought against him it was critical to enjoin the director as a party so that he may be heard by making a response to these proceedings. 8. The court notes that making adverse orders against the Director DOSH when he is not a party in these proceedings would be going against their right to be heard and condemning them unheard which goes against the rules of natural justice and our Constitution. A court of competent jurisdiction made a finding and the same has not been appealed against the Appellant ought to have first rectified the position but it did not. Even though this is an appeal from the lower court the Appellant ought to have noted the sentiments of the competent court and enjoin the director in the proceedings even as an interested party. 9. Be it as it may, this court notes that the Appellant seems to be hiding behind the issue of service to challenge its indolence in challenging the decision of the DOSH within the limitation period given. Although the court has inherent powers to do justice the same can only be exercised to a party who comes to court with clean hands and a sincere litigant. In this case it is clear the Appellant was aware of the award when its insurer requested for second medical examination and the fact that the Respondent’s advocates demanded for the same and they went mute. 10. This court notes that since the Respondent was awarded Kshs 1,959,600/= on 27th June, 2023 and served upon the Appellant the same day and demanded on 30th January,2024 based on 50% permanent disability the Appellant could object to the same within 60 days via section 51 of the Act and the Director to respond within 14 days via section 52 thereon have the right to appeal. The Appellant instead of objecting through its insurer subjected the Respondent to a second medical examination contrary to section 25(1) of the WIBA which provide as follows: - *An employee who claims compensation or to whom compensation has been paid or is payable, shall when required by the Director or the employer as the case may be, after reasonable notice, submit himself at the time and place mentioned in the notice to an examination by the medical practitioner designated by the Director or the employer with the approval of the Director.* 1. This court notes that the Appellant ought to have conducted the second medical examination with the approval of the director as seen above which would be accompanied with their objection to the award and adds that the drafters of the WIBA must have foreseen a scenario where employers would come up with their medical reports or those of their insurers which would be detrimental to the injured employees. This is the reason the Act under section 25(1) required such an employer to only undertake such a second medical examination with approval of the Director. In this case no such approval was sought by the Appellant. 2. In the case of **Stephen Wangusi Nyongesa v Dot.Com Bakery Limited [2022] KEELRC 224 (KLR)** court held as follows: - *Any process outside of the statute that is shown to have been undertaken, either by the Respondent or its agents and/or insurers to the disadvantage of the Applicant regarding the assessment and award made by the Director of Occupational Safety and Health Services was an outright illegality, which this Court cannot sanction.* 1. The court notes that since the Appellant was already served with the demand the best they could have done was to object and seek approval of the Director to do a second medical examination on the Respondent. The Appellant did the examination illegally and still did not appeal the Director’s outcome but issued a post-dated cheque stating that the amount was commensurate with the injuries suffered without involving the director. The Appellant never objected to the director’s award as provided for under Section 51 of the Work Injury Benefits Act which provides: - *“(1) any person aggrieved by a decision of the director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.* *(2) the objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined.”* 1. In the above case of Stephen Wangusi, the court held as such: - *The Respondent did not dispute the Director’s assessment and award, either as by law provided or at all. Indeed the Respondent passed on the assessed claim to its insurers for settlement.* *7. In the Respondent’s words,* *“The Insurance opted to conduct an independent assessment and directed that the Claimant undergo a Second medical evaluation by a different doctor…”* *8. The Respondent did not tell the Court in which law this kind of procedure is domiciled…* 1. As it stands the DOSH award of 27th June,2023 has not being objected to by the Appellant as it chose to appeal to this court to set aside the award which was rightfully adopted by the lower court as the judgment of the court without following the right procedure. After the lapse of 60 days after the demand was made the award was subject to be paid by the Appellant. 2. **The Appellant has not shown why the DOSH Award should be set aside by this court since its second medical report was found to be illegal. The only adjustments this court will make is to reduce the amount paid by the Appellant through its post-dated cheque of Kshs 211, 022/= made in January, 2024 thereby leaving a balance of Kshs 1,748,578/= as outstanding and will be adopted as the judgment and decree of the court.** 3. **In the upshot the Appeal is found unmerited and is hereby dismissed with costs.** 4. **The Court adopts the balance of Director’s award of Kshs 1,748,578/= as the judgement and decree of this court.** 5. **It is so ordered**. **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**