[2025] KEELRC 276 (KLR)

National Gender & Equality Commission v Director of Occupational Safety and Health Services & another (Civil Appeal E020 of 2022) [2025] KEELRC 276 (KLR) (6 February 2025) (Ruling)

Neutral citation: [2025] KEELRC 276 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Civil Appeal E020 of 2022

L Ndolo, J

February 6, 2025

Between

National Gender & Equality Commission

Appellant

and

Director of Occupational Safety and Health Services

1st Respondent

John Nzomo Nzioka

2nd Respondent

Ruling

1. This ruling determines the 2nd Respondent’s objection dated 7th June 2024, in response to the Appellant’s Memorandum of Appeal. By his objection, the 2nd Respondent seeks the following orders:a.That the appeal be dismissed for offending Sections 51 and 52 of the Work Injury Benefits Act;b.A finding that the appeal is incompetent, misconceived and frivolous.

2. The objection is supported by an affidavit sworn by the 2nd Respondent and is premised on the following grounds:a.That the Memorandum of Appeal dated 18th February 2022 and filed on 21st February 2022, was filed without due regard to the laid down procedure and/or sequence of challenging the decision of the 1st Respondent rendered on 29th April 2021 as stipulated under Sections 51 and 52 of the Work Injury Benefits Act;b.That the appeal was filed outside the prescribed statutory period without leave of the Court;c.That the time for lodging any objection against the decision of the 1st Respondent lapsed on 27th June 2021;d.That the firm of K. Ochieng & Associates Advocates who have filed the appeal acted without instructions from the employer, the purported Appellant herein;e.That the appeal was instituted in bad faith as the 2nd Respondent was not served and/or notified of the Memorandum of Appeal and only became aware of it 6 months after its filing, through an email from APA Insurance Limited, who is not a party in the matter;f.That as at 29th April 2021, the 2nd Respondent’s employer was ready and willing to settle the award of Kshs. 5,976,735 and had submitted the relevant records to the Insurance Company;g.The appeal is unfounded in law and is an abuse of the court process;h.That the delay in settling the award is prejudicial to the 2nd Respondent;i.That it is in the interest of justice that the objection be allowed.

3. A replying affidavit was sworn by Festus Kithinji on 30th October 2024. Kithinji, who describes himself as a Claims Officer in the employment of the Appellant’s insurer, APA Insurance Limited, contests the objection for want of legal foundation. Kithinji states that the objection raises contested matters of fact which cannot be determined in limine.

4. While denying the assertion by the 2nd Respondent that the appeal was filed out of time, Kithinji faults the 1st Respondent for failing to address issues raised in an objection dated 14th October 2021.

5. In concluding his affidavit, Kithinji makes reference to an investigation report arising from an investigation commissioned by his employer, which is said to have returned findings on possible criminal fraud.

6. My perusal of the pleadings and submissions filed by the parties reveals that there are many contested matters of fact, which cannot be determined by way of an objection. What is more, there are serious allegations bordering on fraud, made against the 2nd Respondent.

7. For this reason and without determining the merit of the appeal at this stage, I decline to issue any orders that would summarily extinguish the appeal as sought by the 2nd Respondent.

8. The objection is therefore overruled with no order for costs. The appeal will proceed to hearing on merit.

9. Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 6THDAY OF FEBRUARY 2025LINNET NDOLOJUDGEAppearance:Mr. Ochieng for the AppellantMr. Bosire for the 1st RespondentMr. John Nzomo Nzioka (the 2nd Respondent in person)