https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2366

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **MISC. APPLICATION NO. E092 OF 2026** *(Before Hon. Lady Justice Agnes Kitiku Nzei)* **NJENGA MBUGUA APPLICANT** *VERSUS* **MAJID AL FUTTAIM HYPERMARKETS LTD ..RESPONDENT** **RULING** 1. The application before me for determination is the Applicant’s Notice of Motion dated 20th February, 2026. The Applicant seeks the following Orders:- 2. *That the compensation of* ***Kshs.41,538.46*** *assessed by the Director of Occupational Safety and Health Services to the Applicant herein be adopted as a Judgment of the Court.* 3. *That a decree be issued in accordance with the assessment of the Director of Occupational Safety for the sum of* ***Kshs.41,538.46/=, with interest at 14% per annum from 24th April, 2020****.* 4. *That costs of the Application be paid by the Respondent.* 5. The application is anchored on the Applicant’s supporting affidavit sworn on 20th February, 2026, and documents annexed to the said affidavit include copies of **DOSH/FORM 1** and **DOSH/WIBA 4**. The assessment of compensation by the Director of Occupational Safety and Health Services **(the Director),** which the Applicant now seeks to enforce, **is shown to have been made on** **23rd April, 2020**, regarding work injuries shown to have been sustained by the Applicant on **16th March, 2020**. Demand for payment of the assessed sum is shown to have been made by the Director on **24th April, 2020**. 6. The Respondent did not file response to the application herein, though shown to have been served with the application. The application is, therefore, unopposed. 7. Section 26(4) of Work Injury Benefits Act **(WIBA)** provides as follows:- **“(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 lodging of the claim.”** 1. Failure by the Respondent (the employer) to pay the assessed and demanded sum within the **statutory period of ninety days** amounted to an offence pursuant to **Section 26(6) of the WIBA**, and vested **a civil cause of action** on the Applicant regarding the assessed sum. The said sum thus became the Applicant’s right and entitlement arising from the employer-employee relationship (contract of service) between himself (the Applicant) and the Respondent (the employer). The present enforcement suit/application, therefore, ought to have been brought (filed) within **three (3) years** from the date of expiry of **ninety (90) days** given to the Respondent by the Director to pay the assessed sum/compensation. 2. The suit herein was filed on 23rd February, 2026, over five (5) years from the date the cause of action arose. **Section 89 (formerly Section 90) of the Employment Act 2007** provides as follows:- ***“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”*** 1. The suit/application herein was clearly filed outside the aforestated statutory limitation period and is, therefore, statute-barred. 2. Although orders sought by the Applicant would have been merited had the application been filed within the time prescribed by statute, this Court’s hands are tied by the aforestated statute. The Court has no jurisdiction to grant orders based on a statute-barred suit. 3. Consequently, the Applicant’s Notice of Motion dated 20th February, 2026 is hereby struck off, with no order as to costs. The Court file herein is hereby closed. 4. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS** **31ST DAY OF JULY 2026** **AGNES KITIKU NZEI** **JUDGE** **ORDER** This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. **AGNES KITIKU NZEI** **JUDGE** Appearance: Mr. Masua for the Applicant No appearance for the Respondent