[2024] KEELRC 1818 (KLR)

Mwangi (Suing as the legal representative of John Karanja Mirichi (Deceased) v Lijodi & another (Miscellaneous Application E079 of 2023) [2024] KEELRC 1818 (KLR) (11 July 2024) (Ruling)

Neutral citation: [2024] KEELRC 1818 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Miscellaneous Application E079 of 2023

DN Nderitu, J

July 11, 2024

Between

Rakeli Wanjiru Mwangi (Suing as the legal representative of John Karanja Mirichi (Deceased)

Applicant

and

Michael Mwale Lijodi

1st Respondent

Jedhacom Logistics

2nd Respondent

Ruling

I. Introduction 1. The applicant herein is a joint legal representatives of John Karanja Mirichi who was until his death on 22nd March, 2022 an employee of the respondent. She has presented to court a limited grant of letters of administration ad litem issued jointly to her and her daughter Veronicah Wangui Karanja by the Chief Magistrate’s Court at Nakuru on 1st September, 2022.

2. The deceased died as a result of fatal injuries sustained in the course of his employment with the respondents in a traffic road accident on 22nd March, 2022 along the Mombasa-Nairobi Highway.

3. Consequently, a claim for assessment of compensation was lodged with the Directorate of Occupational Safety and Health Services (DOSH), Nakuru County.

4. Vide a notice dated 5th October, 2022 the Occupational Safety and Health Officer, Nakuru, informed the respondent that compensation for the deceased had been assessed at Kshs4,512,000/= and requested the respondent to settle the same or ostensibly to object to the award if not satisfied with the same.

5. A reminder dated 20th February, 2023 was sent to the respondent demanding that the above award be settled but again no action was taken by the respondents.

6. The respondent did not act on the award and as a result the applicant commenced these proceedings through Daye M D & Co Advocates by way of a notice of motion (the application) dated 13th December, 2023.

7. The application is expressed to be brought under Order 51 Rule 1 of the Civil Procedure Rules, Sections 3A, 1A, and 1B of the Civil Procedure Act, and Sections 30, 36, 37, and 40 of the Work Injury Benefits Act (WIBA), among other enabling provisions of the law, seeking the following –1. That this honourable court be pleased to adopt as a judgment of this court the award of Occupational Safety and Health Officer-Nakuru County as against the Respondents herein.2. That this honourable court be pleased to enter judgment ordering the respondents to pay the applicant herein an award of Kshs4,512,000. 00 as assessed by the Director of Occupational Health and Safety Services, under the Work Injury Benefits Act within 30 days and in default thereof execution to issue.3. That this honourable court be pleased to award interest on the amount from the date of assessment until payment in full.4. That costs of the application be borne by the Respondents in any event.

8. The application is based on the grounds on the face of it and supported with the affidavit of the applicant sworn on 13th December, 2023 with a copy of the certificate of death, the letter of limited grant ad litem, the DOSH Form 1, and the letter dated 5th October, 2022 demanding settlement of the award, and a reminder dated 20th February, 2023, annexed thereto among other documents.

9. Upon service of the application, the respondents entered appearance through Kihuga & Co. Advocates on 26th January, 2024, and filed a replying affidavit sworn by the 1st respondent on 17th January, 2024.

10. On 7th February, 2024 when the matter came up for directions it was by consent directed that the application be canvassed by way of written submissions. Miss Daye for the applicant filed her written submissions on 28th February, 2024 while Mr. Kimani for the respondents filed on 5th March, 2024.

II. Evidence 11. The averments in the supporting affidavit are as set out in the introductory part of this ruling to the effect that the applicant is the widow and a joint administratrix of the Estate of John Karanja Mirichi, deceased, who died from a fatal road traffic accident on 22nd March, 2022 while at work in the employment of the respondents as a truck driver. A copy of the certificate of death and a grant of letters of administration ad litem are attached and exhibited.

12. It is deposed that subsequent to the death the applicant cooperated with the respondents in facilitating assessment of compensation in accordance with Work Injury Benefits Act (WIBA) through DOSH. In pursuance of the compensation, DOSH Form 1 was filled and completed by the employer and submitted to DOSH with the details supplied and authenticated by the respondents and executed by the 1st respondent on 26th September, 2022 and submitted on the same date. This was after DOSH had written to the respondents on 21st September, 2022 directing them to fill, complete, and submit the requisite form, DOSH Form 1 alluded to above.

13. It is deposed that subsequently, DOSH assessed the claim and made an award for compensation of the deceased in the sum of Kshs4,512,000/=. The award was communicated to the respondents vide a letter dated 5th October, 2022 and the respondents were demanded to settle the same. A reminder dated 20th February, 2023 was sent to the respondents reminding them to settle the award as the period of 90 days within which the respondents were eligible to object to the award had expired. The two letters have been exhibited by the applicant.

14. The respondents failed, refused, and or neglected to settle the award prompting the applicant to file this application and the court is thus urged to compel the respondents to make good the award.

15. In the replying affidavit it is admitted that DOSH assessed and awarded as deposed by the applicant. However, it is deposed that the award is erroneous as the same was based on non-existent benefits to the deceased and as such the award is termed excessive and inflated.

16. It is deposed that this court has the jurisdiction to re-assess the award and make an appropriate award.

III. Submissions By Counsel 17. On the one hand, counsel for the applicant submitted that the applicable law is found in Sections 51 & 52 of WIBA which provide as follows –51. Objections and appeals against decisions of the Director(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.52. Director’s reply(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.

18. Counsel identified three issues for determination by the court – Whether the tabulation of the claim is erroneous and or inflated; Whether the court should re-assess the award; and, Whether the court should enter judgment and compel the respondents to settle the award.

19. On the first issue it is submitted that the decision of the Supreme Court in Petition No. 4 of 2019 – Law Society of Kenya V Attorney General and that of the Court of Appeal in Heritage Insurance Company Limited V David Fikiri Joshua & Another (2021) eKLR are categorical that DOSH has the jurisdiction under WIBA in assessing compensation for the injury or death at work and making an award upon such evaluation.

20. It is submitted that from the replying affidavit the jurisdiction of DOSH is not attacked but the respondent’s allegation is that the award was excessive and inflated. It is further submitted that the jurisdiction of this court in enforcement of the award is not objected to as the respondents failed to object to the award or settle the same.

21. It is submitted that the award was made based on the documents, information, and particulars supplied by the respondents as employers of the deceased. In any event, it is submitted, the respondents have not stated which items or which part of the award is erroneous. It is submitted that having supplied the materials and information upon which the award was made, the respondents as the custodians of employment records under Sections 10 & 74 of the Employment Act cannot allege otherwise. In any event, it is further submitted, the respondents have not availed evidence of the alleged error in the award as the burden of proving the same lies with them under Sections 107 & 108 of the Evidence Act.

22. It is submitted that the respondents failed to object to the award as provided for under Sections 51 & 52 of WIBA, cited verbatim in an earlier part of this ruling, and that the objection to the application is a disguised objection and or appeal against the award which should not stand as such objection is un-procedural and unlawful. It is submitted that the respondents lost the opportunity to challenge the award when they failed to object to the same as per the law.

23. On the second issue, it is submitted that the court has the jurisdiction to hear and determine the application before it. It is submitted that this court has no jurisdiction to review the award as no appeal has been filed before it in accordance with the law cited above.

24. It is submitted that there is no contestation that the deceased was an employee of the respondent in view of the filled DOSH Form 1 and the admissions made by the respondents in the replying affidavit and as such the award is now a debt due and payable to the applicant.

25. Counsel cited Ng’ang’a V County Government of Nakuru (2023) eKLR, Law Society of Kenya V Attorney General & Another (2019) eKLR and Borniface Indolo Luciva V Prime Qualifiers Construction Company Limited & Another (2021) eKLR in laying emphasis that since no objection to the award was filed by the respondents and no appeal is pending on the same, this court is seized of the jurisdiction to deal with the application and pronounce itself on the same.

26. It is submitted that since WIBA does not provide for the procedure to be followed in enforcement of an award made by DOSH this court should enforce the award as such an award emanates from an employment relationship.

27. On the other hand, counsel for the respondents submitted that the application raises the following issues for determination – Whether this court has jurisdiction over the subject matter; Whether the deceased was an employee of the respondents; and, Whether the award by the Director was properly tabulated.

28. On the first issue counsel for the respondents submits that this court (ELRC) has no jurisdiction to enforce the award from the DOSH and that this court can only interact with the award if a party is appealing against the award under Section 52(2) of WIBA.

29. Counsel cited several decisions including Lameck Nyakundi Anyona V W.J.J. Kenya Construction Company Limited (2022) eKLR wherein Rika J opined that if ELRC assumed the jurisdiction to enforce the award of the DOSH an aggrieved party shall have no avenue to appeal.

30. It is further submitted that there is no law, including the Constitution, that donates to this court the power to hear and determine the subject matter. Counsel cited Samuel Kamau Macharia & Another V Kenya Commercial Bank (2012) eKLR amongst several other decisions on the fundamental importance of a court establishing and confirming the jurisdiction based on statutes and or the constitution before indulging in the hearing and determining the same.

31. On the second issue, it is submitted that the applicant has failed to demonstrate and prove that the deceased was an employee of the respondents. It is submitted that the applicant has fallen short of the threshold provided for in Section 47(5) of the Employment Act. It is submitted that where an employee, or for that matter any person claiming for or on behalf of such an employee, fails to prove employment the entire claim shall fail. Counsel cited Casmir Nyankuru Nyaberi V Mwakikar Agencies Limited (2016) eKLR and Zakaria Adoyo Obondo V Tai Shujun & Another (2020) eKLR in support of the position taken by the respondents in that regard.

32. On the third issue, it is submitted that the deceased was on a minimum wage of Kshs8,109/= and that based on the same the award ought to have been assessed at Kshs778,464/=.

33. In the circumstances, counsel for the respondents urges the court to find that the applicant is not entitled to the reliefs sought and dismiss the application with costs.

IV. Issues For Determination 34. The court has gone through the application, the supporting affidavit and the annexures thereto, the replying affidavit, and the submissions by counsel for both sides. In my considered view, the following issues commend themselves to the court for determination –a.Does this court (ELRC) possess the requisite jurisdiction to enforce an award made by DOSH under the WIBA?b.Is the applicant entitled to the reliefs sought?c.Who meets the costs?

V. Jurisdiction 35. No court has any business making or issuing orders in a matter over which it has no jurisdiction as such a court labours in vain and such orders are mere nullities – See Owners of the Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd (1989) and Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited (2012) eKLR.

36. The ELRC is created as a special court under Article 162(2) of the Constitution and established under the Employment and Labour Relations Court Act. The jurisdiction of the court is spelt out in Section 12 of that Act as follows –12. Jurisdiction of the Court(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union; (c) disputes between an employers' organisation and a trade unions organisation;(d)disputes between trade unions;(e)disputes between employer organizations;(f)disputes between an employers' organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer's organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.(2)An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisationa federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.(3)In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders(i)interim preservation orders including injunctions in cases of urgency;(ii)a prohibitory order;(iii)an order for specific performance;(iv)a declaratory order;(v)an award of compensation in any circumstances contemplated under this Act or any written law;(vi)an award of damages in any circumstances contemplated under this Act or any written law;(vii)an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or(viii)any other appropriate relief as the Court may deem fit to grant.(4)In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.(5)The Court shall have jurisdiction to hear and determine appeals arising from –(a)decisions of the Registrar of Trade Unions; and(b)decisions of any other local tribunal or commission as may be prescribed under any written law.

37. Further, Section 87 of the Employment Act provides as follows –87. Complaint and jurisdiction in cases of dispute between employers and employees(1)Subject to the provisions of this Act whenever―(a)an employer or employee neglects or refuses to fulfill a contract of service; or(b)any question, difference or dispute arises as to the rights or liabilities of either party; or(c)touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court.(2)No court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1).(3)This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.

38. The foregoing provisions of the law on the jurisdiction of this court are clear on the exclusive jurisdiction of this court on matters employment and labour relations. Article 165(5)(b) of the Constitution excludes the High Court, and indeed all other courts, from encroaching on the exclusive jurisdiction of this court. Parties aggrieved by the decisions from this court appeal to the Court of Appeal.

39. Section 52(2) of the WIBA gives this court the jurisdiction to hear and determine appeals against an award made by DOSH.

40. However, WIBA does not provide for the procedure or mechanism through which the award of DOSH shall be enforced in case the employer opts not to object and ultimately fails to appeal to this court yet fails, refuses, or neglects to settle the award. This aspect of the law has been a source of conflicting decisions from this court (ELRC) on whether the court has jurisdiction to enforce that award. Some of the conflicting decisions have been cited above as availed by counsel for the parties.

41. Some of the Judges in this court have held that the court can only interact with the award if the decision of DOSH is challenged in court by way of an appeal while others have held that this court has jurisdiction to entertain and indeed hear and determine a cause or action for enforcement of the award. I deliberately adopt the latter view.

42. Essentially, an award made by DOSH is in resolution of an employment relations or labour dispute or claim. It is a process in settlement of an employment relations or labour dispute or issue between an employer and an employee. DOSH in making an award performs a quasi-judicial function and the parties to that process cannot approach the court without exhausting that process as such premature move would be in conflict with the doctrine of exhaustion and in contravention of Section 16 of the WIBA which is in the following terms –16. Substitution of compensation for other legal remedies.No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.

43. While it is correct that WIBA does not provide for the procedure and or mechanism for enforcement of an award of DOSH, it is illogical and unjust to argue that an employee whose award has been neglected or denied by an employer, who has not appealed against the award, has no remedy in law. There can be no legal wrong without a legal remedy. Some courts have argued that the award by the director should be enforced in a lower court (magistracy) so that a dissatisfied party may appeal to this court (ELRC). As noted above, some courts, and this court takes this school of thought, have held that this court has jurisdiction to enforce the award.

44. There is no obscurity in this issue. An employer or an employee who is dissatisfied with the award of DOSH and who elects to pursue the issue beyond DOSH shall follow the procedure as provided for in Sections 51 and 52 of WIBA culminating in an appeal against the award in this court. Logically, such an appeal shall be attacking the legality of the award in as many ways as one can fathom including such aspects as whether the claimant was an employee, the nature and extent of injury, the quantum of the award, et cetra.

45. On an appeal, this court may either uphold the award or set it aside or give such orders as it may be deemed fit and lawful in the circumstances. The crux of the matter then becomes, if the court upholds the award or varies it in whatever way or manner but nonetheless there is an award subsisting, is the court not clothed with the jurisdiction to enforce that decision? Would it make any legal or logical sense to return the award to the director and submit that the court has no jurisdiction in enforcing the award of the director that it has upheld or only varied? The answer to these rhetorical questions, in my considered view, is that the court would have jurisdiction to enforce the award.

46. Where the award is not appealed, as it happened in this matter, and the employer fails, refuses, and or neglects to settle the same, the employee or a legal representative, has a right to approach the court for enforcement of the award by way of an application or a cause. The award, if not challenged and or appealed against as provided for by the law, becomes a debt due and payable arising from an employment relationship. I entertain no doubts in my mind that this court (ELRC) has jurisdiction to hear and determine such a cause based on Section 12 of the Employment and Labour Relations Court Act and Section 87 of the Employment Act.

47. The jurisdiction of this court to hear and determine an appeal challenging an award by the director should not be confused or married with the jurisdiction of this court to hear and determine matters and issues of employment and labour relations as provided for in the sections of the law cited in the preceding paragraph. For avoidance of doubt, a decision made by ELRC in its original and exclusive jurisdiction is appealable to the Court of Appeal and no prejudice would be suffered by a party who is dissatisfied with the judgment of the court in enforcement of an award which award has not been appealed.

48. I find no merits in the argument advanced by counsel for the respondents that the enforcement of awards made by DOSH should be filed in the magistrate’ courts and only come to ELRC on appeal. An award that has not been appealed against becomes a debt founded on an employment relationship and this court has both original and exclusive jurisdiction over the same.

49. For all the foregoing reasons this court agrees with the holding by Nduma J in Bornface Indolo Luciva V Prime Quantifiers Construction Company Limited (2021) eKLR and Kitiku J in Elijah Kisyanga Ndende V Manager Zakhem International Construction Ltd (2022) eKLR among many other decisions. ELRC has jurisdiction to enforce the awards by DOSH where the award is not challenged by way of an appeal and the employer fails, refuses, and or neglects to settle the award after expiry of the time allowed for lodging such an objection and an appeal.

50. On the first issue on jurisdiction, therefore, the court returns that it has jurisdiction to entertain, hear, and determine the subject matter.

51. On the second issue, I wish to first deal with an aspect that has been raised by the respondent’s counsel in the written submissions that the applicant has failed to prove that the deceased was an employee of the respondents. Firstly, the issue of employment of the deceased by the respondents has not been denied or disputed in the replying affidavit. In fact, it is impliedly admitted that the deceased was such employee as the only issue raised by the respondents is the amount awarded which is termed inflated and excessive.

52. It is an established position in law and practice that evidence may only be tendered in court by way of viva voce evidence or by way of an affidavit. It is therefore completely out of order for counsel for the respondents to purport to adduce evidence from the bar. Besides, there is evidence on record that the respondents signed and submitted Form 1 to DOSH for the purposes of assessment of the awardable compensation. If the respondents did not acknowledge and admit to the deceased having been their employee, on what basis did they fill in and submit the document? It is the view of the court and it is so held that this submission from the bar is an afterthought that has miserably missed the threshold of admission in evidence and the same is hereby disregarded and dismissed.

53. The truth of the matter is that the respondents were aware and took part in the entire process of assessment of the awardable compensation but then failed, refused, and or neglected to settle the same. Unfortunately, when the award was communicated to the respondents and a demand made for them to settle as per the letter of DOSH dated 5th October, 2022 and the reminder of 20th February, 2023, the respondents took no action whatsoever. The respondents had two options at that point in time – to object to the award and if dissatisfied escalate the matter to this court on appeal, or the settle the award. That is what is provided for in the law.

54. There is no other way in which this court may interfere with award made by DOSH other than as stated above. What the respondent is attempting to do too late in the day is to appeal to this court to un-procedurally review or set aside the award. I find and hold that this is not provided for in the law – See Sections 16, 51, & 52 of WIBA.

55. For the foregoing reasons, the court finds merits in the application and the same is hereby allowed.

56. I wish to make the following comment. When an applicant approaches this court (ELRC) for enforcement of the award of DOSH, such applicant should not be asking this court to adopt the award as a judgment of the court as such a prayer is logically flawed. Instead, once an award has been made by DOSH and an employer fails, refuses, and or neglects to settle the same, without lodging an objection and subsequently an appeal against such an award in accordance with the law afore-stated, and the period within which to lodge the same lapses, the amount in the award becomes due and payable as a civil debt arising from an employment relationship.

57. An applicant should therefore pray that judgment be entered by the court based on the award and the recovery and enforcement of the resulting judgment of the court shall follow the usual execution process. Since there is no specific procedure provided for the same, I opine that the action may be commenced by way of an ordinary cause or, as has been the practice, by way of a miscellaneous application.

VI. Determination 58. For all the foregoing reasons, the court finds the notice of motion dated 13th December, 2023 by the applicant meritorious and the same is allowed as prayed with costs.

VII. Orders 59. This court issues the following orders –a.The notice of motion dated 13th December, 2023 by the applicant has merits and the same is hereby allowed with costs.b.Judgment be and is hereby entered in favour of the applicant in the sum of Kshs4,512,000/= with interest thereon at court rates from 5th October, 2022, when the award was made till payment in full.c.The applicant is awarded costs of these proceedings.

DELIVERED VIRTUALLY, DATED, AND SIGNED AT NAKURU THIS 11TH DAY OF JULY, 2024. ................................DAVID NDERITUJUDGE