https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2002

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS MISCELLANEOUS CAUSE ELRC MISC No. E002 OF 2026 NICHOLAS JUMBALE CHISENGA…………………………………...APPLICANT VERSUS CHINA ZHONGXING CONSTRUCTION CO. LTD…………...……. RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant filed an application dated 26th day of January, 2026, by way of Notice of Motion which was brought under Rule 28 (1)(b) and 31 of the Employment and Labour Relations Court (Procedure)Rules, 2016, section 12, 24(5), 87 of the Employment and Labour Relations Act, section 26 and 52 of the Work Injury Benefits Act, Sections 1A, 1B, & 3A of the Civil Procedure Act and Article 162(2) of the Constitution and all enabling provisions of law seeking for the Order- 2. THAT a decree be issued in accordance with the assessment of the Director of Occupational Health and Safety for the sum balance of Ksh 218,152.00 (Kenya shilling Two hundred and eighteen thousand one hundred and fifty-two shillings) with interest at court rates from the date the award was issued on 10 December, 2024; 3. THAT costs of the application be paid by the Respondents. Grounds of the application 1. The Applicant was employed by the Respondent herein as a mason, where he diligently served. On or about 11 December, 2023, the applicant was caught between two surfaces while installing a tower crane thus sustaining a cut on his right-hand index and middle fingers. The applicant was injured and the Respondent reported the same incidence to the Directorate of Occupational Safety and Health Services on or about 21 December, 2023. 2. The Applicant was medically examined and found to have sustained a hand middle and index finger deformity with reduced range of motion. Consequently, the applicant was admitted at Emory Hospital for out-patient treatment on 11 December, 2023 due to this work injury. Thereafter, a Medical Report dated 18 September, 2024 was done, and the percentage of permanent incapacity was assessed and awarded at 15% to the applicant having sustained a hand middle and index finger deformity. The County Occupational Safety and Health Officer assessed and confirmed the compensation payable to the applicant at Ksh 375,400.00 (Kenya shilling Three hundred and seventy-five thousand four hundred shillings) in line with the Work Injury Benefits Act No. 13 of 2007. 3. Thereafter, the applicant only paid part of the award being Ksh157,248.00 (Kenya shillings one hundred and fifty-seven thousand two hundred and forty-eight shillings). This has resulted in an outstanding sum balance of Ksh 218,152.00 (Kenya shilling Two hundred and eighteen thousand one hundred and fifty-two shillings). The applicant has unsuccessful made several efforts to have the said remainder assessment paid to him by the Respondent on several accounts. 4. The Respondent did not timely challenge the Directors decision within 60 days provided for under Section 51 of the Work Injury Benefits Act, 2007. The Act requires that objections and appeals against decisions of the Director should be done within sixty days of such decision and must be in writing in the prescribed form accompanied by particulars. 5. The Applicant has served the Respondent with the assessment of the Director of Occupational Safety and Health Services but no payment has been made. Consequently, the applicant has resorted to filing this suit in order to seek the court’s intervention in adopting the remainder payment of award by the Director of Occupational Safety. 6. It is thus only in the interest of justice that this court be moved by the equitable legal maxim that no person will suffer a wrong without a remedy and that this matter be heard expeditiously and the application herein be allowed as prayed. 7. The applicant filed an affidavit of even date in support of the application, where he annexed the notice by the employer of the accident, the medical report, and the compensation assessment by the Directorate of Occupational Safety and Health Services (DOSH). 8. The application was opposed by the respondent vide affidavit of XU JIANSHENG, the respondent’s Managing director dated 24th arch 2026 who averred as follows- 9. THAT from the outset, I am advised by the Respondent’s counsel on record and verily believe the same to be true that the Application herein is incompetent, bad in law, incurably defective for want of a valid supporting affidavit. I pray that the suit be struck out with costs. 10. THAT in the alternative and without prejudice to the foregoing, I wish to oppose the prayers sought in the application as follows; -a) The claim the subject of this suit was amicably settled by the parties herein culminating in a settlement agreement dated 28th May 2025. 11. THAT on or about 2nd December 2023, the Respondent employed the Applicant as a Mason at a monthly salary of Kshs. 26,000/=. On 11th December 2023 at about 3 pm, while installing a Tower Crane at the Respondent’s project at Magnolia Creek Properties LLP, the Applicant was caught between two surfaces and sustained injury to his right-hand middle and index fingers. The Applicant was rushed to Emory Hospital where he was treated and resumed work on 13th December 2023. On 21st December 2023, the Respondent reported the incidence to the Directorate of Occupational Safety and Health Services as well as its insurer, M/s Sanlam General Insurance. In a Medical Report dated 18th August 2024 from Emory Hospital, a Dr Hassan described the nature of permanent incapacity to be hand middle and index finger deformity and reduced range of motion, and assessed the percentage of permanent incapacity at 15%. Based only on this opinion, the County Occupational Safety and Health Officer, on 12th October 2024, awarded the Applicant compensation in the sum of Kshs. 374,400/=. A copy of the Award was also forwarded to the Respondent’s insurer in January 2025. 12. THAT upon receipt of the Award, the Respondent’s insurer obtained approval for the Applicant to submit to a second medical examination before Dr Evelyn Etemesi (MBChB), which the Applicant readily obliged. Upon re-examining the Applicant and referencing both the Medical Report dated 18th August 2024 from Emory Hospital and the X-ray images of the injuries, Dr Evelyn Etemesi (MBChB), in a Medical Report dated 2nd February 2025, assessed the degree of permanent incapacity at 7%. That from both Medical Reports, there was no loss of phalanges nor metacarpals. Therefore, I am advised by the Respondent’s counsel on record and verily believe the same to be true that the percentage degree of disablement under the First Schedule of the Work Injury Benefits Act Cap. 236 Laws of Kenya would range between 1-3% for each of the injured middle and index finger, and the second opinion was thus more accurate. 13. THAT based on this second opinion, the Respondent’s insurer informed the Respondent that the compensation payable to the Applicant was Kshs. 157,248/= and not Kshs. 374,400/=. Accordingly, they advised the Respondent to appeal the Award dated 12th October 2024, advice that the Respondent heeded. Upon learning of this fact, the Applicant who was in constant communication with the Respondent over the payment informed the Respondent and its insurer that he was willing to amicably settle the claim based on the percentage degree of permanent incapacity in the second opinion. This would obviate the need for the intended appeal. Upon consultations with its insurer, the Respondent agreed to amicably resolve the claim as proposed by the Applicant, who upon receipt of a Cheque dated 19th May 2025 for the full sum of Kshs. 157,248/= signed a self-explanatory Discharge Voucher on 28th May 2025, marking the matter as fully settled. 14. THAT from the foregoing, the Applicant's allegation that only part of the Award has been paid to him is not only plainly false and misleading, it is predicated upon a deliberate and fraudulent non-disclosure and/or concealment of material facts, with a view of achieving an unjust enrichment at the Respondent's expense. That had the Applicant's counsel on record made any demand to the Respondent prior to surreptitiously moving this Honourable Court, these material facts would have been brought to their attention and forestalled this needless suit. I make this affidavit in opposition to the Application dated 26th January 2026 and pray that the same be dismissed with costs. I produce a paginated bundle of the documents referred to herein collectively marked as "XJ-1". DECISION 1. The application was canvassed by way of written submissions. 2. The issues for determination 3. Whether the affidavit in support of the application was defective 4. Whether the orders sought are merited. Whether the affidavit in support of the application was defective 1. The respondent stated that the affidavit by the applicant was defective as the signature of the applicant was digitally imposed. The court found it was not in dispute as to whether that was the signature of the applicant and decided the application, taking into account section 20 of the Employment and Labour Relations Court Act Act that the court is not to decide matters based on procedural technicalities. Whether the orders sought are merited. 1. There was no dispute that the injury occurred, and the assessment was done as supported by the annexure by the applicant ‘NJC3’ for Kshs. 374,400. It was not also in dispute that the applicant was subjected to a 2nd medical examination pursuant to section 25 of WIBA to wit-‘5.(1)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 medical report reduced the permanent injury to 7 %. The respondent stated the insurer advised it to appeal, but the applicant opted for settlement as per the medical report. The applicant admitted having received a Cheque dated 19th May 2025 for the sum of Kshs. 157,248/= signed a self-explanatory Discharge Voucher on 28th May 2025, marking the matter as fully settled. (The 2nd medical assessment , cheque and discharge were exhibited by the respondent). 2. The applicant now seeks the balance of the DOSH award and relies on section 19 of WIBA, to wit- ‘9.(1) Notwithstanding any provision to the contrary in any written law, compensation shall not be― (a) (b) assigned or pledged; capable of attachment or any form of execution under a judgment or order of a court of law; or (c) set off against any debt of the person entitled to the compensation. (2) Any provision of an agreement in terms of which an employee assigns, purports to assign, relinquishes or purports to relinquish any right to benefits in accordance with this Act, shall be void. ‘ 3. The court holds that the impugned discharge voucher is a contract. Following the 2nd medical opinion, reducing the injury incapacity from 15% to 7%, the applicant agreed to a reduced compensation with the employer, was issued a cheque, and signed a discharge. The respondent then forfeited its undeniable right to object to the award under section 51 of WIBA, relying on the 2nd medical opinion and the payment. The applicant did not plead any ground to vitiate the discharge in which he committed to accept the lesser amount as full settlement of the injury claim based on the 7% incapacity. The applicant benefited from the impugned discharge and the respondent lost the right to object. I find that section 19 of WIBA does not apply in the circumstances, as there was valid consideration for the variation of the amount payable. Had the respondent objected following the 2nd medical report, there is a likelihood the amount would have reduced due to the reduction in the incapacity from 15% to 7%, and perhaps that is the reason the applicant agreed to the lower payment. There is also a possibility the DOSH would have taken a different position, but we shall never know. 4. I find the applicant is being dishonest in seeking to invalidate the agreement between the parties, when the respondent already fulfilled its bargain by issuance of the cheque, which the applicant admitted to and indeed received the payment and executed an undisputed discharge agreement 9 days after receipt of the cheque. There was no evidence to vitiate the contract. 5. In the circumstances, I disallow the application dated 26th January 2026. To temper justice with mercy I make no order as to costs. The file is marked as closed. 6. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 12TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant:- absent Respondent-Wamunga