[2024] KEELRC 707 (KLR)

Mukavana v Butali Sugar Mills Ltd (Employment and Labour Relations Appeal E013 of 2023) [2024] KEELRC 707 (KLR) (14 March 2024) (Judgment)

Neutral citation: [2024] KEELRC 707 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kakamega

Employment and Labour Relations Appeal E013 of 2023

JW Keli, J

March 14, 2024

Between

Samuel Nashiali Mukavana

Appellant

and

Butali Sugar Mills Ltd

Respondent

Judgment

1. The Appellant being dissatisfied with the Decision of the Director of WIBA at Kakamega made on 30th October 2023 in the Appellant’s objection to the Director’s Decision in WIBA/KKM/1594/17 dated 30th October 2017 filed a Memorandum of Appeal dated 28th November 2023(pg. 1-3 of Record) and record of appeal received in Court on the 30th November 2023 seeking the following orders:-a.That this appeal be allowed and the entire decisions of the Director of WIBA dated 30th October 2023, and 30th January 2017 at Kakamega in respect to objection dated 25th October 2023 and Demand for payment in WIBA/KKM/1594/17 dated 30th January 2017 be set aside and /or annulled in their entirety;b.That this Honourable court be pleased to award to the Appellant general damages for pain and suffering;c.That this Honourable court be pleased to award the Appellant herein full monthly salary of Kshs. 20,308. 00/= multiplied by a multiplier of 96 months;d.That this Honourable Court be pleased to award the Appellant Special damages of Kshs. 495,875/=e.That this Honourable court be pleased to award damages for future medical expenses;f.Interest on b, c, d, and e above at the court rate from 30/1/2017 till payment in full;g.Costs of this appeal be awarded to the Appellant and the attendant costs at the Office of the Director of WIBA be provided for.

2. The Appeal was premised on the following grounds:-1. That the Director of WIBA erred in law and facts in reaching his decision and awarding the Appellant under the heading of loss of future earning only and failing to consider other damages incidental thereto and its execution is untenable and agonizing on the appellant, which is against banal principles that provides for protection of employees rights.2. That the Director of WIBA erred in law and facts by computing sixty days window of objection from 30/1/2017, the time he sent the demand for payment to the Respondent, and dismissing the appellant’s objection dated 25th October 2023. 3.That the Director of WIBA erred in law and fact by failing to appreciate the fact that the Appellant only came to know of the existence of the said decision on 16th October 2023 when the Appellant was formally served with the assessed form DOSH WIBA 4 forwarded to him vide a letter dated 29th September 2023. 4.That the Director of WIBA erred in law and facts by not finding that the sixty days window of objection started running from 16th October,2023 when the Appellant received an assessed form DOSH WIBA 4 from the Director of WIBA.5. That the Director of WIBA erred in law and facts by failing to appreciate the fact that the Appellant had a right to be informed of the Director ‘s decision in WIBA/KKM/1594/17 dated 30/1/2017 for him to be in a position to exercise his rights of objection and appeal guaranteed under Section 51 of the Work Injury and Benefits Act, 2007. 6.That the Director of WIBA erred in law and facts by failing to award damages under the heading of general damages for pain and suffering to the Appellant herein in its decision dated 30th January 2017 in WIBA/KKM/1594/17. 7.That the Director of WIBA erred in law and facts by failing to award special damages to the Appellant herein for medical expenses used by the Appellant in treatment deducted from his NHIF cover on 07/09/2015 and Kshs. 472,078. 00/- paid in cash on 08/09/2015 totaling Kshs. 495,878. 00/- to St.Luke Hospital as medical bill.8. That the Director of WIBA erred in law and facts by failing to award the Appellant future medical expenses to be used in future medical treatment after being discharged from the hospital.9. That the Director of WIB A erred in law and facts by failing to appreciate the fact that the Appellant had been recommended for retirement on medical grounds and miscalculating the Loss of Future earning capacity by 100. 10. That the Director of WIBA erred in law and facts by failing to appreciate the fact that the Appellant was entitled to full monthly salary of Kshs. 20,308. 00/=multiplied by a multiplier of 96 months being remaining months in active service by the Appellant.

3. The Appellant on 5th January 2024, filed a supplementary record of Appeal dated 19th December 2023.

4. The Appeal was canvassed by way of written submissions. The Appellant’s written submissions dated 16th January 2024 were drawn by Yegon and Mungai Advocates and were received in Court on 22nd January 2024. The Respondent’s written submissions dated 17th February 2024 were drawn by Masinde & Co. Advocates and were received in Court on 20th February 2024.

Background to the appeal Appellant's case 5. The Appellant was hit by a heavy metal and injured his knee and chest (Exh-14-15) on 30th May 2015 while in the employ of the Respondent. He was rushed to Friends Lugulu Mission Hospital and later referred to Moi Teaching and Referral Hospital (Exh-13). Due to the severe nature of his injuries, he was referred to St.Luke Orthopaedic & Trauma Hospital and admitted on 21/8/2015 until discharge on 7/9/2015.

6. That he was re-admitted on 20/12/2015 due to chest pains and discharged on 22/12/2015(E-16). The Appellant continued attending the hospital for physiotherapy and management till January 2017. According to the Medical report of 7th January 2017 by Dr. Lelei, although the Appellant had recovered from the injuries, he could not engage in strenuous activities and was assessed to have permanent disability of 40%. The report recommended he be retired on medical grounds. (Page 16 of the Appellant Record is the medical report of Dr. Lelei).

7. The Appellant remained in employment until 24th April 2017 when his services were terminated.

8. The Appellant states that while at St. Luke's Orthopaedic Hospital, he was billed three times; Kshs. 386,759/-on 21/08/2015 Kshs. 495, 878/- on 7/09/2015 and Kshs. 60,556. 00 on 23/12/2015(Exh- 21A-25A, EXH-18-21 and EXH- 18A-19A). He paid Kshs. 495,898/- and Kshs. 4,200/-(Exh- 18-21 and Exh 22) while the Respondent paid Kshs 56,356/- and Kshs. 386,759/-(Exh. 18A and 19A and Exh- 21A- 25A) and Exh-20A).

9. That the DOSH form ML/DOSH/FORM 1 was completed by the Respondent on 2nd June 2015 and sent to the Director on 27/1/2017, two years after the accident.

10. On 27th November 2017, the Appellant filed Civil Suit Butali Civil suit No. 288 of 2017 which was put on hold due to the Supreme Court petition No. 4 of 2019.

11. Subsequently, through an order dated 21st February 2023, the suit was referred to the Director of WIBA (Exh- 1A).

12. The Appellant filed Miscellaneous suits E003 of 2023 and E010 of 2023 when the director of WIBA failed to avail the assessed DOSH form 4. Suit E003 of 2023 was dismissed referring the Appellant to the Director.

13. The assessed WIBA Form was availed to him on 16th October 2023 after his request of 26th September 2023. On 26th October 2023 he filed DOSH/WIBA/2 as his objection to the assessed DOSH/WIBA/4 dated 30/1/2017.

14. That on the 30th October 2023, the Director replied and sent a reply to the Appellant’s objection dismissing it on the sole ground that the same was filed out of time (Page 12 of the Record Appeal was the letter by the Director)

The Respondent's Case 15. The Respondent filed submissions in the appeal. They are agreeable that the Appellant was injured on 30th May 2015 and they completed the DOSH form. The Appellant was treated at Lugulu and Eldoret Orthopaedic Hospital till recovery and stated that the Respondent paid all medical bills amounting to Kshs. 472,078/-on the Appellant’s behalf though all the receipts were issued in the Appellant’s name as he was the patient.

16. That the Appellant continued to attend the Hospital for physiotherapy until January 2017 when Dr. Lelei assessed the Appellant’s disability at 40%. The Appellant continued in the Respondent’s employ until 24th April 2017 when his employment was terminated for gross misconduct leading to the filing of the Suit Butali MERC No. 6 of 2018 whose judgment was delivered on 3rd February 2021, upholding the termination. The Appellant filed two suits Butali SPMCC No. 273 of 2017 and Butali SPMCC 288 of 2018 on 31st October 2017 for damages for injuries suffered in 30. 5.2015. Suit Butali SPMCC No. 273 of 2017 was struck out for multiplicity.

17. The Respondent states that its Insurers sought a second medical report on the appellant's condition and the Appellant failed to avail himself.

18. That the Director WIBA assessed the Claimant’s claim on 30th January 2017 in WIBA/KKM/1594/17 and forwarded it to the Appellant and Respondent and neither of them raised an objection within the 60 days and stated that Section 16 of WIBA precludes filing of suits outside the provisions of the Act.

19. The Respondent objected to Butali SPMCC 288 of 2018 and the same suit was referred to the Director WIBA on 21st February 2023.

20. The Appellant on 15th May 2023 applied for enforcement of the WIBA determination and the same was stuck out for being an incompetent proceeding.

21. That the Appellant purported to lodge an objection to the Director’s award decision of 30th January 2017 on 25th October 2023 and in his response of 30th October 2023, the Director informed the Appellant that his claim was time-barred as the decision of 30th January 2017 could only have been objected to only 6 months from January 2017 and which time lapsed on 30th March 2017.

22. The Respondent states that the compensation claim was time-barred and cannot be enforced by the Honourable court as Section 54(1) of WIBA, 2007 sets a limit of 60 days to lodge a written objection to the assessment of the Director and an appeal to the Superior court within 30 days.DETERMINATIONIssues for determination.

23. The Appellant in his submissions identified specific issues for determination in the appeal as follows:-a.Whether this Honourable Court is seized of Jurisdiction to entertain, hear, and determine this Appealb.Whether this Honourable Court should take up the Appellant’s claim for compensation, re-assess, and substitute its findings with that of the Director of WIBA dated 30/1/2017. c.Who should bear the costs of this Appeal and the attendance costs in the office of the Director of WIBAd.Interest on costs and decretal sum.

24. The Respondent in its submissions submitted on the Appellant’s appeal having being filed without leave and on the Appellant’s defective appeal for seeking compensation outside the Work Injury Benefits Act, 2007; and for being time barred.

25. The Court sitting on appeal from trial Court is guided by the settled law that it must reconsider the evidence, re-evaluate the evidence itself and draw its own conclusions bearing in mind it has neither seen or heard the witnesses and should make allowance for that fact. See Selle & Another v Associated Motor Boat Co. Ltd & Others (1948)EA123. In the instant appeal, the impugned decision is on matters of law and facts so the Court will re-evaluate the law and authorities relied on by the parties in determining the appeal.

26. The Court having perused the memorandum of appeal, documents relied on and the written submissions of the parties was of the considered opinion that the issues for determination in the appeal are as follows: -a.Whether the Appeal is Meritedb.Whether the Appellant is entitled to the Reliefs sought?

Whether the Appeal is Merited Appellant’s submissions 27. The Appellant submitted that the Court has jurisdiction to handle an appeal against the Director’s Reply to an objection by dint of Section 52(2) of WIBA. The Appellant submitted that he objected to the Director’s award of 30th January 2017 and the decision of the Director was received on 30th October 2023. He states that he received the Director’s response on 10th November 2023 and he filed his Memorandum of Appeal on 29th November 2023.

28. The Appellant submits that the principle of equity “ubi jus ibi remedium” states that equity will not suffer a wrong to be without remedy to ask the court to re-assess and substitute the Director’s Award of 30th January 2017 relying on Section 10 of WIBA that an injured employed is entitled to compensation and under Section 47 of the Act for the Employer to defray medical expenses.

29. The Appellant submitted that based on various case authorities, an injured person is entitled to general damages for pain and suffering, loss of amenities, loss of future earnings, and future medical expenses. He suffered great pain and he is entitled to an award of general damages from pain and suffering and loss of earning capacity. From 7th January 2017 to March 2023, he could not perform manual tasks and this led to him losing total earnings rather than 40% permanent disability and he is unlikely to ever be in a healthy state as he was before his accident.

30. The Appellant submitted that the loss of earning capacity and loss of future earning capacity are different awards awarded as separate heads and that the Loss of Future Earning capacity should be awarded under the head of general damages and relied in the cases of William J Butler v Maura Kathleen Butler(1984)eKLR; Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR; West v(H) & Son Ltd v Shepherd [1964]A.C326; Denshire Muteti Wambua v Kenya Power & Lighting Co. ltd [2013] Eklr & Kigaraari v Aya(1982-1988)1 KR 768; Mombasa HCCC 79 of 2012-Gabriel Mwashuma V Mohaamed Sajjad and Milly Glass Works Ltd; Milicent Atieno Ochuonyo v Katola Richard [2015]eKLR; Isaac K. Chemjor & Another v Laban Kiptoo[2019]eKLR; Kenya Bus Services Ltd v Gituma[2004]EA 91.

31. The Appellant submits that he is entitled to special damages including the medical expenses of Kshs. 495,878/- he incurred and interest on the costs of the Appeal on both the decretal sums and costs. He relied on the decision in Highway Furniture Mart Limited v Permanent Secretary Office of the President & Another [2006] e KLR and Practice Direction No. 1 of 1982.

Respondent’s submissions 32. The Respondent in opposing the Appeal submitted that the Appeal before the Court was filed without obtaining the Court’s leave and the reliefs sought are only obtainable under common law and not under the confines of WIBA.

33. The Respondent submitted that the Appellant’s claim for compensation is time-barred and this court cannot enforce it, as under Section 54(1) of WIBA, a 60-day time limit is set when one may lodge a written objection upon assessment and an appeal to the Superior Court within 30 days. The Respondent submits that the Director’s award was issued on 30th January 2017 and hence the appeal is time-barred and ought to be struck out. To buttress this, the Respondent relied on the decision in Abubkar v Modern Coast Builders & contractors Ltd (Miscellaneous Application No. 15 of 2022) [2022] KEEKLRC- 13243(KLR).

34. The Respondent submits that the Award was issued on 30th January 2017, the Appellant sought to challenge it in October 2023, which is five and half years after, and that the appeal was filed without leave of the court. To buttress this point, he relied on the decision in Kimaru & Another v Safaricom Kenya PLC Ltd [2023] KEELRC 2930 KRL.

35. The Respondent submitted that under Section 30 of WIBA, the Director may only award compensation of permanent incapacity at 96 months of the last salary and payment of medical bills, transport, and temporary assistance for permanent disability.

36. That the Director cannot award general damages or loss of future earnings. That a party cannot include new claims that are not permitted under WIBA and seeks that the appeal be dismissed.

Decision 37. The Court considered the material placed before it by the Appellant, and perused the submissions by both parties and the relevant law.

38. The Works Injury Benefits Act (WIBA) gives the Director of Occupational Health and Safety Services (DOSH)exclusive primary jurisdiction over work injury claims.

39. It was not in dispute the Appellant was injured in the place of work of the Respondent, hospitalised, treated and assessed by Dr. Lelei to have 40% percent permanent disability vide medical report dated 7th January 2017.

40. It was not in dispute the employer reported the accident and the Director proceeded to assess and award compensation applying salary figure for 96 months' wages at 40 %.

41. The appellant stated that the Director should have applied the full monthly salary of Kshs, 20,308/- multiplied by 96 remaining months in active service of the Appellant. The Director applied salary of Kshs. 14,274. 00 and annexed his payslip for November 2016 indicating Basic Salary of Kshs. 15,659. 00 and House Allowance of Kshs. 2,349/-. Leave allowance was also reflected for Kshs. 2349/-. (page 17 of the record)

42. The appeal as I understood it emanated from the Director of Occupational Safety and Health Services (DOSH) rejection of objection by the Appellant of Award for being time-barred. The Appellant was dissatisfied with the assessment..

Legal Framework 43. Under Section 2 of the Work Injury Benefits Act, 2007(WIBA)(hereby stated as the Act) states:-“An accident" is defined as “an accident arising out of and in the course and scope of an employee’s employment and resulting in personal injury.”

44. Section 10 of the Act provides for the right to Compensation:-(1)An employee who is involved in an accident resulting in the employee’s disablement or death is subject to the provisions of this Act, and entitled to the benefits provided for under this Act.

45. Section 23 of the Act provides for inquiry by the Director on Accident to wit:-“(1)After having received notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with this Act. (2) An inquiry made under subsection (1) may be conducted concurrently with any other investigation. (3) An employer or employee shall, at the request of the Director, furnish such further particulars regarding the accident as the Director may require. (4) A person who fails to comply with the provisions of subsection (3) commits an offence.”

46. Section 25(1) of the Act provides for submission to Medical Examination“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.” The Court found there was no such a request to the Appellant within the timelines. The alleged request by the Employer’s insurance was outside the objection period."

47. Section 26(4) of the Act provides for the period to settle claim to wit:-“(4)An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim.” The employer did not comply.

48. Section 30 of the Act provides for compensation of permanent disablement as follows:-‘’1)Compensation for permanent disablement shall be calculated on the basis of ninety-six months earnings subject to the minimum and maximum amounts determined by the Minister, after consultation with the Board, and set out in the Third Schedule.(2)If an employee has sustained an injury specified in the first column of the First Schedule, the employee shall for the purposes of this Act, be deemed to be permanently disabled to the degree set out in the second column of the First Schedule.(3)If an employee sustains an injury not specified in the First Schedule which leads to permanent disablement, the employee shall be paid such percentage of disablement in respect thereof as in the opinion of a medical doctor will not lead to a result contrary to the guidelines of the First Schedule.(4)If an injury or serious disablement contemplated in paragraph (a) or (b) has unusually serious consequences for an employee as a result of the special nature of the employee’s occupation, the Director may determine such higher percentage as the Director shall deem equitable.(5)No payment for temporary disablement in accordance with the provisions of section 29 shall be deducted from compensation payable under this section.’’

49. The medical report by Dr. Lelei certified the permanent disability of the Appellant at 40% hence section 31(3) of the Act applied in the assessment of the accident claim.

50. Section 47 of the Act provides for medical expenses in the accident to be defrayed by the employer as follows:-“(1)Subject to the provisions of this section, an employer shall defray any expenses reasonably incurred by an employee as the result of an accident arising out of, and in the course of the employers employment in respect of the following matters— (a) dental, medical, surgical or hospital treatment; (b) skilled nursing services; 19 CAP. 236 Work Injury Benefits [Rev. 2022] (c) the supply of medicine and surgical dressing; (d) travelling and subsistence in connection with the employee’s journey to and treatment in a place within Kenya where he was directed by his medical practitioner to go for treatment; and (e) the supply, maintenance, repair and replacement of artificial limbs, crutches, and other appliances and apparatus used by persons who are physically disabled….”

51. Section 48 of the Act provides for Medical Report as follows:-“(1)A medical practitioner who examines an employee shall within fourteen days after the first examination of the employee injured in an accident or within fourteen days after having diagnosed an occupational disease, furnish a medical report to the Director in the prescribed manner”. The Court finds there was only one medical report by Dr. Lelei dated 7th January 2017(page 16 of the record).

52. Section 51 of the Act provides for objection to the assessment by the Director as follows:-“(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.’’ It was not in dispute there was no objection by either party in compliance with the law. The Appellant’s case was that time ought to have started running when he received the assessment on the 16th October 2023 and not 30th January 2017 the date of assessment."

53. Section 52 of the Act provides for response to Objection as follows:-“(1)The Director shall within fourteen days after the receipt of an objection in the prescribed form, give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision. (2) An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision” The response by the Director was dated 30th October 2023 to objection dated 25th October 2023(page 12 of the record).

54. Considering the legal framework above, I hold the objection was time-barred. There is no provision for an extension of time of claim. It is a maxim of equity that, equity follows the law, hence the same cannot be invoked to defeat the written law. The Appellant was working at the time of the claim and he did not make an effort to find out about the injury reporting by the employer. I uphold the decision of DOSH dated 30th October 2023(Page 12 of Record) that the objection was statutory time-barred.

55. Turning on other grounds of Appeal, there was the Challenge to the award on the basis that it ought to have been 96 monthly wages multiplied by salary and not over 100 as was done by DOSH.

56. The award to the Appellant was calculated based on the Medical report by Dr. Lelei produced by the Appellant of 40% permanent disablement.

57. Section 30 (1) of WIBA provides for a permanent disablement award of 96 months earnings. Section 30(3) provides for compensation based on percentage of disablement. The provisions are as follows:-‘’1) Compensation for permanent disablement shall be calculated on the basis of ninety-six months earnings subject to the minimum and maximum amounts determined by the Minister, after consultation with the Board, and set out in the Third Schedule.(2)If an employee has sustained an injury specified in the first column of the First Schedule, the employee shall for the purposes of this Act, be deemed to be permanently disabled to the degree set out in the second column of the First Schedule.(3)If an employee sustains an injury not specified in the First Schedule which leads to permanent disablement, the employee shall be paid such percentage of disablement in respect thereof as in the opinion of a medical doctor will not lead to a result contrary to the guidelines of the First.’’

58. The Court holds that the claim by the Appellant fell under section 30(3)(supra) having been declared 40% permanently disabled and that was the basis of his award for 96 Months of earnings at 40%. The Court is unable to review the award based on less salary applied as the objection was time barred.

59. Section 47 of WIBA requires the Employer to defray medical expenses. In the objection, the Appellant blamed DOSH for not applying the provision and produced evidence of incurred medical expenses.

60. The Court perused these about the claim, for Kshs. 472,078. Attached to the Record was an itemized medical statement from St. Luke Orthopaedic and Trauma Hospital (SNM 4a- pg-18 of record). The Patient was stated as the Appellant. The Admission date was indicated as 21st August 2015, discharge date as 7th September 2015. The payer is indicated as Butali Sugar Company with the NHIF Rebate of Kshs. 23,800. 00.

61. The Appellant produced a receipt of Kshs. 472,078/ as amount paid. The Court holds that as at that time, the Appellant was in employment as he produced a payslip for November 2016. The court noted that the Appellant’s Basic Pay was Kshs. 15,659 and burdened by various deductions. The court believes the hospital bill was settled by the employer as the invoice produced by the Appellant indicated the payer was Butali Sugar Company despite the receipt having been issued in the Appellant’s name.

62. The Court finds on a balance of probability the employer had complied with the provisions of Section 47 of the WIBA and hence there was no need for the DOSH to ask the employer to defray the medical expenses. The court makes a similar finding on the other alleged medical bills for the same Hospital in the same period of admission.

63. On the claims under general damages for pain and suffering and lost earnings, future earnings, and future medical expenses, the Court holds that the Director exercises his jurisdiction under the confines of the WIBA and that Sections 30 and 47 of the Act, were the only ones applicable in the assessment.

64. I agree with the defence those awards sought in the appeal are under Common law and not exercised by the DOSH.

65. The Respondent mentioned the failure of the Appellant to subject himself to a medical examination. The Respondent did not object to the award within 60 days and hence was also time-barred.

66. In the upshot, the Court upholds the decision on the objection by the DOSH, and the assessment is upheld.

Whether the Appellant is entitled to reliefs sought. 67. The Appeal had been found unmerited. The Appellant is not entitled to any of the reliefs sought.

Conclusion 68. In the interest of justice and saving of judicial time, the Award for Kshs.548,121. 16 is adopted as judgment of the court for enforcement purposes.

69. The Respondent should proceed and deposit the awarded amount with the Director within 14 days of this judgment so that the Appellant can benefit from the award. Failure to deposit, the full amount in 14 days to attract interest at Court rates from the date of this judgment until full payment.

70. I have considered the nature of the claim and relationship between the parties and declare each party to bear own costs in the appeal.

71. It is so Ordered

DATED, SIGNED, AND DELIVERED ON THE 14TH MARCH 2024 IN OPEN COURT AT KAKAMEGAJ.W. KELIJUDGEIN THE PRESENCE OFC/A Lucy MachesoFor Appellant : Yegon AdvocateFor Respondent: Masinde Advocate