https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2106

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT MACHAKOS APPEAL NUMBER E044 OF 2025 PEOPLELINK CONSULTANTS LIMITED…………….……………………………............................................APPELLANT -VERSUS- FESTUS KORIR NDIWA………..................................................................................................................RESPONDENT (Being an Appeal from the Ruling and Order of the Hon. D. Kuto (SPM) delivered on 12th August 2025 in Mavoko MCELRC Cause No. E097 of 2024) CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Ruling and Order of the Hon. D. Kuto (SPM) delivered on 12th August 2025 in Mavoko MCELRC Cause No. E097 of 2024 between the parties filed a Memorandum of Appeal dated the 3rd of September 2025 seeking the following orders: - 2. This Appeal be allowed. 3. The ruling and order of the subordinate court in Mavoko MCELRC Misc. No. 097 of 2024 be set aside and the Appellant's Notice of Motion application therein dated 09/01/2025 be allowed as prayed. 4. In the alternative to prayer (2) above, the Respondent's application dated 09/12/2024 in Mavoko MCELRC Misc. No. 097 of 2024 be struck out with costs. 5. The costs of this Appeal be awarded to the Appellant. GROUNDS OF THE APPEAL 1. The Honourable Magistrate erred and misdirected himself in law and in fact by failing to consider and determine the Appellant's complaint in the Notice of Motion application dated 9/01/2025 that a final order prejudicial to it had been made without it having been served and given the opportunity to make representations in relation to the proceedings leading to the said final order. 2. The Honourable Magistrate erred and misdirected himself in law and in fact in failing to consider and appreciate that his ruling the subject of the appeal herein served to effectively condemn the Appellant unheard contrary to the law and basic tenets of justice. 3. The Honourable Magistrate erred and misdirected himself by failing to appreciate and consider that in entertaining ex-parte proceedings presented before him on behalf of the Respondent without locating any statutory provision permitting entertaining such proceedings without hearing all the parties, the Honourable Court gave effect to an award of Director of Occupational Safety and Health Services way before the time limited for lodging of objections and appeals against such awards under Section 51 of the Work Injury Benefits Act, Cap. 236 Laws of Kenya thus purporting to deprive the Appellant of its undoubted statutory right of appeal. 4. The Honourable Magistrate erred and misdirected himself in the law and fact in determining the Appellant's Notice of Motion application dated 09/01/2025 by placing reliance on the position advanced on behalf of the Respondent through an affidavit filed on his behalf by counsel on contested matters of fact contrary to settled position of law hence arrived at an erroneous decision. 5. The Honourable Magistrate erred and misdirected himself in law and fact by holding that he had jurisdiction to enforce awards of the Director of Occupational Safety and Health Services without locating any statutory provision conferring any such jurisdiction upon him. 6. The Honourable Magistrate erred and misdirected himself in law in holding that there was no evidence to support the Appellant's indicated position that the award of Director of Occupational Safety and Health Services the subject of the proceedings before him had been set aside yet the uncontroverted position in this respect had been clearly set out in paragraph 8 of the affidavit in support of the Appellant's application dated 09/01/2025 and annexure "GK-2" thereto as well as the depositions and annexures to paragraph 5 of the Supplementary Affidavit of the Appellant. 7. The Honourable Magistrate erred and misdirected himself in law in delivering the said ruling which effectively served to enforce a non-existent award of the Director of Occupational Safety and Health Services against the Appellant which position flies on the face of the law as set out in the Work Injury Benefits Act. BACKGROUND TO THE APPEAL 1. The case before the Trial Court was initiated via a Notice of Motion dated 9th December 2024, seeking the following orders:- 2. That this Honourable Court be pleased to adopt as a judgement of this Court, the award of the Director of Occupational Safety and Health Services. 3. That judgement be entered in favour of the applicant as against the Respondents for Kenya Shillings One million, fifty-five thousand, one hundred and sixty-seven and thirty-eight cents. (Kshs. 1,055,167.38.0) being the amount assessed under the work injury benefits Act. 4. That this Honourable Court be pleased to award interest on the amount from the date of assessment until full payment. 5. That the costs of this Application be borne by the Respondents. 6. In support of the application, the Respondent filed a supporting affidavit sworn on 9th December 2024, together with annexures (pages 5-15 of Appellant’s ROA dated 13th April 2026). 7. Following the grant of the orders sought, on 13th December 2024, the Appellant filed a Notice of Motion dated 9th January 2025 seeking the following orders:- 8. This Honourable Court be pleased to set aside the judgment delivered on 13th December 2024 and Decree issued on the same date and all consequential orders arising therefrom. 9. The Respondent/Applicant be granted unconditional leave to file and serve the necessary Replying Affidavit and generally defend this matter. 10. In the alternative to prayer 2 above, this Honourable Court be pleased to strike out the Applicant's application dated 9th December 2024 for being fatally defective, premature and for want of jurisdiction. 11. The costs of this Application be provided for. 12. The Notice of Motion dated 9th January 2025 was accompanied by a Supporting Affidavit sworn by Goretti Wanjeri Kimani on the same date, and the annexures thereto (pages 16-29 of the ROA). 13. The grounds upon which the Notice of Motion was brought were that:- * 1. Following a work injury sustained by the Respondent on 21st August 2024 at East African Portland Cement Ltd where he had been placed as an outsourced employee by the Appellant, the Respondent was issued with a duly filled DOSH FORM 1 on 23rd August 2024, with instructions to visit St. Teresa Hospital, Kiambu, where he was originally treated, to have the form filled by the treating doctor. The Respondent was directed to return the form to the Appellant for lodging with the Director of Occupational Safety and Health Services. 2. The Respondent, instead of visiting St. Teresa Hospital where he originally received treatment, visited Kitengela Sub-County Hospital for medical assessment. He was awarded total permanent incapacity of 50%. Contrary to the Appellant’s instructions to return the form to them after the medical assessment, the Respondent directly submitted the DOSH FORM 1 to the office of the Director of Occupational Safety and Health Services at Athi River. 3. The Respondent’s claim was allowed by the Director on 16th October 2024 who issued for DOSH/WIBA 4. The Respondent was awarded a sum of Kshs. 1,055,167.38 made up of Kshs. 941,952 being 50% of 96 months' wages and Kshs. 113,215.38 being monthly earnings for 150 days when the Applicant was incapacitated. 4. Being aggrieved by the decision of the Director, the Appellant lodged an Objection on 16th December 2024 before the lapse of the statutory 60 days for lodging an objection. The same was allowed on 18th December 2024 with the award of Kshs. 1,055,167.38 being set aside. The Director ordered that the Respondent undergoes a fresh medical assessment on the injuries sustained and the degree of incapacity. 5. In the intervening period, the Respondent had filed the Notice of Motion dated 9th December 2024 to enforce the award of the Director, and he obtained an ex-parte judgement against the Appellant on 13th December 2024. The Appellant complains that he was not served with the Application and the same was heard ex-parte contrary to the rules of procedure. 6. Further, the Appellant argues that the Respondent’s application for enforcement was premature since it was made before the lapse of the statutory period for lodging objections. In any event, since the award of the Director was set aside on 18th December 2024 in his objection decision, the judgment of the court adopting the original award as an order of the court also ought to be set aside. 7. Finally, they state that the Honourable Trial Court lacked jurisdiction to grant the orders sought in the application dated 9th December 2024, as enforcement of award of the Director of Occupational Safety and Health Services is a preserve of the Employment and Labour Relations Court pursuant to its inherent jurisdiction under Section 12 of the Employment and Labour Relations Court Act. 1. In response to the Notice of Motion dated 9th January 2025, the Respondent filed a Replying Affidavit sworn on 28th April 2025 (pages 30-32 of the ROA) where he opposed the Appellant’s application on the basis that no competent and valid Objection to the Director's award was produced before the court. He stated that the one provided was invalid, null and void in law, and any proceedings before the Director premised on the same was equally invalid, null and void in law. The Respondent further argued that no evidence of any decision/written answer to the Objection as stipulated under Section 52(1) of the Work Injury Benefits Act was produced, setting aside the assessment made on 16th October 2024. According to the Respondent, the Appellant’s objection was fabricated and an afterthought, as the Appellant did not in its Reply to Demand that it was opposed to the decision of the court, and instead sought for time to make good the Respondent’s claim. 2. The Appellant countered the Respondent’s response through a Supplementary Affidavit sworn by Goretti Wanjeri Kimani on 10th June 2025 (pages 33-48 of the ROA), where they denied accepting liability in their reply to demand, and indicated that the Respondent had been invited vide a letter dated 5th January 2025 to attend medical re-assessment in accordance with the Director’s objection decision, but had failed to show up without justification. They further contested the validity and legality of the Respondent’s Replying Affidavit as it was sworn by the Respondent’s Advocates who deponed to matters of fact therein. 3. The court issued directions that the application dated 9th January 2025 be disposed of by way of written submissions. The parties complied (pages 58-65 of the ROA). 4. The Trial Magistrate Court delivered its ruling on the 12th of August 2025, dismissing the Appellant’s Notice of Motion dated 9th January 2025, with costs, and reinstating the judgment entered on 13th December 2024 (ruling at pages 77-79 of the ROA). DETERMINATION 1. The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 1. In their submissions dated 8th May 2026, the Appellant submitted generally on the grounds of appeal. 2. On his part, the Respondent identified the following issues for determination in his submissions dated 9th June 2026:- * 1. Whether the trial court was seized with jurisdiction to hear and determine matters relating to enforcement of awards made by the Directorate of Occupational Safety and Health Services (Hereinafter referred to as DOSH) 2. Whether the Replying Affidavit in support of the application for adoption of DOSH award was defective for being sworn by an advocate. 3. Whether the trial court erred in adopting the award by the Director DOSH. 3. The court found consensus among the parties that the issues placed before the court for determination were as follows- * 1. Whether the trial court was seized of jurisdiction to hear and determine matters relating to enforcement of awards made by the DOSH 2. Whether the Replying Affidavit in support of the application for the adoption of the DOSH award was defective for being sworn by an advocate. 3. Whether the trial court erred in upholding the award by the Director DOSH. 4. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” Whether the trial court was seized with jurisdiction to hear and determine matters relating to the enforcement of awards made by the DOSH. 1. The grounds of appeal under the issue were as follows – 1. The Honourable Magistrate erred and misdirected himself by failing to appreciate and consider that in entertaining ex-parte proceedings presented before him on behalf of the Respondent without locating any statutory provision permitting entertaining such proceedings without hearing all the parties, the Honourable Court gave effect to an award of Director of Occupational Safety and Health Services way before the time limited for lodging of objections and appeals against such awards under Section 51 of the Work Injury Benefits Act, Cap. 236 Laws of Kenya thus purporting to deprive the Appellant of its undoubted statutory right of appeal. 2. The Honourable Magistrate erred and misdirected himself in law and fact by holding that he had jurisdiction to enforce awards of the Director of Occupational Safety and Health Services without locating any statutory provision conferring any such jurisdiction upon him. 2. The trial court in the impugned ruling dated 12th August 2025 held it had jurisdiction to adopt the award by the DOSH. The respondent submitted that it is not in dispute that the provisions of the Work Injury Benefits Act, 2007, are silent on the enforcement mechanisms of awards made by the DOSH. In the recent decision of Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment) it has been settled that the ELRC court indeed has jurisdiction to adopt such awards. That matter properly fell within the trial court 's pecuniary jurisdiction as the ELRC court. 3. The court finds that the parties were not in agreement on the meaning of the decision in Charles v Cheto. The Court of Appeal in Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment) held as follows- ‘As the learned Judge correctly observed, there is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes, and as provided for under sections 86 and 89 (formerly sections 87 and 90) of the [Employment Act](https://new.kenyalaw.org/akn/ke/act/2007/11) (Cap. 226).’’ The court finds that it is incorrect to imply that the Magistrate's court is the Employment and Labour Relations Court. The jurisdiction of the Magistrate's court is limited to the Gazette Notice No. 6024 dated 22nd June 2018. The Gazette Notice is as follows-‘GAZETTE NOTICE NO. 6024 THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT(No. 20 of 2011) APPOINTMENT OF MAGISTRATES’ COURTS TO HEAR MATTERS RELATING TO EMPLOYMENT AND LABOUR RELATIONS IN EXERCISE of the powers conferred by section 29 (3) and (4) (b) of the Employment and Labour Relations Court Act, 2011, and in consultation with the Principal Judge of the Court, the Chief Justice appoints all Magistrates of the rank of Senior Resident Magistrates and above as Special Magistrates designated to hear and determine the following employment and labour relations cases within their respective areas of jurisdiction: 1. Disputes arising from contracts of employment (excluding trade disputes under the Labour Relations Act, 2007) where employees gross monthly pay does not exceed KSh. 80,000.00 as commenced and continued in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016. 2. Matters relating to the following specific areas— (i) offences under the Work Injury Benefits Act, 2007 (ii) offences under the Employment Act, 2007 (iii) offences under the Labour Institutions Act, 2007 (iv) offences under Occupational Safety and Health Act, 2007; and (v) offences under the Labour Relations Act, 2007. The conferment under Gazette Notice No. 9243 is revoked. Dated the 10th June, 2018. DAVID K. MARAGA, Chief Justice/President, Supreme Court of Kenya.’ 1. The Court holds that the jurisdiction to adopt assessment awards by DOSH lies with judges of the Employment and Labour Relations Court, as held by the Court of Appeal in Charles v Cheto [2025] KECA 784 (KLR). Whether the Replying Affidavit in support of the application for adoption of DOSH award was defective for being sworn by an advocate 1. The ground of appeal under the issue was- The Honourable Magistrate erred and misdirected himself in the law and fact in determining the Appellant's Notice of Motion application dated 09/01/2025 by placing reliance on the position advanced on behalf of the Respondent through an affidavit filed on his behalf by counsel on contested matters of fact contrary to settled position of law hence arrived at an erroneous decision. 2. It was not in dispute that the replying affidavit to the application leading to the impugned decision was by the advocate. There were contested issues like whether or not there was an objection lodged with DOSH and a decision made. The appellant urged that the affidavit by the respondent was incompetent for addressing contested facts between the parties and relied on the decision in Habiba Ali Mursai &4 others v Mariam Noor Abdi (2021)KEELC 190(KLR) at paragraphs 24-27. 3. Conversely, the respondent submitted that Order 19 Rule 3 of the Civil Procedure Rules, 2010 provides that:- ‘3 (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove.’ The appellant herein has not demonstrated that the replying affidavit sworn by the respondent's advocate offends the best rule evidence as provided by the above legal provision. The respondent asserted that there is no law that bars an advocate from swearing an affidavit in a client's cause, on matters which he/she as an advocate has personal knowledge of. That the appellant has not pointed out which of the paragraphs of the said replying affidavit offends the law or rules of procedure. It is trite that an advocate is competent enough to swear an affidavit in support of his/her client's cause where matters being deponed to are matters of law and supported by facts which are within the advocate's personal knowledge having handled his/her client's cause. In this case, the matters deponed to were within the knowledge of the advocate swearing the affidavit. The objection to the replying affidavit was an uncalled-for venture by the appellant. The respondent relied on the case of Factory Guards Limited v Factory Guards Limited [2014] eKLR where it was stated that: "There is no law that bars an advocate from swearing an affidavit in a client's cause, on matters which he as an advocate has personal knowledge of.’ 4. I do find this is a technical issue. Whether the affidavit was incompetent or not is an issue affecting the merit of the appeal. The court is guided by section 20(1) of the Employment and Labour Relations Act to wit- ‘(1)In any proceedings to which this Act applies, the Court shall act without undue regard to technicalities.’ Whether the trial court erred in adopting the award by the Director DOSH. 1. The grounds of appeal were as follows- 1. The Honourable Magistrate erred and misdirected himself in law and in fact by failing to consider and determine the Appellant's complaint in the Notice of Motion application dated 9/01/2025 that a final order prejudicial to it had been made without it having been served and given the opportunity to make representations in relation to the proceedings leading to the said final order. 2. The Honourable Magistrate erred and misdirected himself in law and in fact in failing to consider and appreciate that his ruling the subject of the appeal herein served to effectively condemn the Appellant unheard contrary to the law and basic tenets of justice. 3. The Honourable Magistrate erred and misdirected himself by failing to appreciate and consider that in entertaining ex-parte proceedings presented before him on behalf of the Respondent without locating any statutory provision permitting entertaining such proceedings without hearing all the parties, the Honourable Court gave effect to an award of Director of Occupational Safety and Health Services way before the time limited for lodging of objections and appeals against such awards under Section 51 of the Work Injury Benefits Act, Cap. 236 Laws of Kenya thus purporting to deprive the Appellant of its undoubted statutory right of appeal. 4. The Honourable Magistrate erred and misdirected himself in law in holding that there was no evidence to support the Appellant's indicated position that the award of Director of Occupational Safety and Health Services the subject of the proceedings before him had been set aside yet the uncontroverted position in this respect had been clearly set out in paragraph 8 of the affidavit in support of the Appellant's application dated 09/01/2025 and annexure "GK-2" thereto as well as the depositions and annexures to paragraph 5 of the Supplementary Affidavit of the Appellant. 5. The Honourable Magistrate erred and misdirected himself in law in delivering the said ruling which effectively served to enforce a non-existent award of the Director of Occupational Safety and Health Services against the Appellant which position flies on the face of the law as set out in the Work Injury Benefits Act. The Appellant’s submissions 1. As the record clearly shows, the said final orders against the Appellant were made without bearing it. Indeed, the proceedings of the said date (see page 67 of the Record of Appeal) show that the learned magistrate entertained the matter suo moto in the absence of the parties, since the application had not been filed under a Certificate of Urgency to warrant its consideration exparte in the first instance. The record will also show that the Learned Magistrate dealt with the matter in the presence of two (2) court assistants, which they urged the court to find that in the ordinary course of matters implies that the proceedings were in open court and not in chambers. That in making those orders, the Learned Magistrate was performing a judicial function. That in so far as there is no legal provision cited on the basis of which the Court was empowered to entertain the proceedings exparte, there was a cardinal obligation to give the Appellant the opportunity to respond to the application before pronouncing self fully against it. There is no legal premise upon which a final order would be made against a party when they never had the opportunity to be heard. That the very scheme of the provisions of Rules 69, 73 (3) and (4) of the Employment and Labour Relations Court (Procedure) Rules as read together with Rule 47 thereof which may have been applicable is clear that the Appellant was entitled to respond to and make representations in relation to the application dated 09/12/2024 by the Respondent. The appellant reiterated that, insofar as the Honourable Court was performing a judicial function when dealing with the matter on 13/12/2024, it was obligated under the principle that is so clear in Article 50 of the Constitution of Kenya to hear the Appellant before making any final orders against it. That to take a contrary position would amount to disregarding a well-established legal principle that no party is to be condemned unheard now codified as a constitutional principle in the aforesaid Article of the Constitution 2. Additionally, it will be noted that the application that was allowed by the Learned Magistrate on 13/12/2024 sought to enforce the decision of the Director of Occupational Safety and Health comprised in the assessment dated 16/10/2024 (the Record of Appeal). Under the law, the Appellant, as the party against whom the said assessment at page 11 of the assessment had been made, had until 16/12/2024 or thereabouts to present an objection against the same to the Director of Occupational Safety and Health. It is therefore clear that the application was filed and determined before the 60 days period provided for purposes of challenging the assessment under Section 51 of the Work Injury Benefits Act, Cap. 236 Laws of Kenya had lapsed. In the premises and without prejudice to our submissions below on the issue of jurisdiction, we humbly submit that the learned magistrate would not have been entitled to deal with the matter before the lapse of the said statutory period. In our humble submissions, Rule 73(4) of the Employment and Labour Relations Court (Procedure) Rules which would have been applicable makes it abundantly clear that an application for enforcement of the decision of the Director of Occupational Safety and Health cannot lie for determination before the lapse of the statutory period for challenging the same as provided for under Sections 51 and 52 of the Work Injury Benefits Act, Cap. 236 Laws of Kenya. In Anguso v DPL Festive Limited [2025] KEELRC 2524 (KLR this position was affirmed by the Honourable Court in the following terms,"Fortunately, the Employment and Labour Relations Court (Procedure) Rules, 2024 provide for the enforcement of WIBA awards by a motion filed after expiry of the duration within which any appeal to the court ought to have been filed under Section 52(2) of the WIBA."Besides the foregoing, we submit that it is a matter of significant bearing on the observance of the constitutional principle on fair hearing codified under Article 50 of the Constitution that the record shows that on 13/12/2024, the learned magistrate allowed the Respondent's application when no one appeared before him to prosecute the same. In our humble view, whether it was by design or ignorance, this reflects an unacceptable position that the Learned Magistrate stepped into the arena of litigation and appeared to advance the cause of a party in a dispute he was expected to adjudicate upon without taking sides. We respectfully urge the court to adopt the reasoning of the High Court in Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR in finding that the proceedings of 13/12/2024 deserved to be set aside as sought by the Appellant for failing to meet the constitutional test of fair hearing thus;".....While the wording of Article 50 of the Constitution on the right to a fair bearing prima facie seems to focus on criminal trials it's not lost that fair trial in civil cases includes: the right of access to a court, the right to be beard by a competent, independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public bearing and the right to be beard within a reasonable rime... it is important that in any judicial process adjudication parties involved be given an opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system." The Respondent’s submissions 1. Conversely, the respondent submitted as follows: from the onset, we submit that there was no competent objection against the decision of the Director DOSH, if at all, and any proceedings purporting to set aside the said award, which proceedings were concealed from the trial court, were defective and thus unenforceable. Section 51 of the Work Injury Benefits Act, 2007 provides 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. 2.The objection shall be 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. Further, Section 52 provides; 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. The impugned objection appears at pages 21-22 of the record of appeal. A plain look at it reveals that it is fatally defective for failure to conform to the requirements of section 51(2) of the Work Injury Benefit Act. Specifically, it fails to disclose the relief claimed or the person lodging it as mandatorily required. It is also not clear whether any supporting documents were indeed attached thereon. That the said objection as presented is suspicious and only manufactured to defeat justice. This is particularly so in in view of the appellant's earlier conduct where it had communicated satisfaction of the DOSH award through their reply to demand and only sought for time to make good the said award. 2. That it is settled law that whoever asserts must prove. As above demonstrated, the appellant failed to prove to the trial court that indeed it lodged the relevant objection in the prescribed form containing the relevant particulars as mandatorily required by law for consideration by the Director DOSH. This being the case, no Reply as envisioned under section 52 of the act could possibly be said to have been rendered if at all. Equally, any proceedings that might have been undertaken on the same if proved is a nullity and unenforceable. We invite this court to further find that the only reasonable explanation why no written answer to the objection was ever produced at the trial court as per section 52 of the Act is because no such decision ever existed. The unexecuted letter whose authenticity remains questionable appearing at page 28-29 cannot for all purposes and intent be construed as the decision envisioned under the said section. This also answers the question why the alleged decision was never copied to the respondent and or his advocate as mandatorily provided. The submissions by the appellant are not only misleading but unsupported by the evidence on record. As earlier submitted, however asserts must prove. The appellant failed to prove the existence of a decision setting aside the award by the director DOSH despite it being in their custody. It was unexplainably never produced at the trial court in support of its application to set aside judgement. It is settled law that in such a case the court was called to draw an adverse inference. It should also not be lost to this court that it failed to prove that relevant objection as by law required was ever lodged for any consideration if at all by the director DÓSH in the first place. In the circumstances, the trial court cannot be faulted in finding the appellant's application unmerited. Decision 1. It was not in dispute that the application dated 9th December 2024 was filed in the lower court and the DOSH award adopted by the Magistrate's court on 13th December 2024. It is apparent that the application was determined ex parte without opportunity to respond and a hearing being afforded to the appellant. The court finds that the Learned Magistrate by adopting the award without giving opportunity to the other party to be heard is affront to the right to fair hearing which is firmly protected by the Constitution under Article 50. It is a hallowed rule of natural justice that a party will not be condemned unheard. The Latin phrase **"audi alteram partem"** literally translates to **"listen to the other side"** or **"let the other side be heard as well" The court faults the trial court for violating the right to be heard of the appellant during the adoption of the assessment award by DOSH.** 2. **The appellant placed before the court the notice of objection stamped as received on the 16th December 2024 by the Sub-County DOSH office Athi River (pages 21- 22) The trial court held that the objection was not in the prescribed form. The respondent’s advocate , Kisiangani Eddah, in replying affidavit dated 28th April 2025 before the trial court and which the lower court appeared to have relied on to hold the objection was not in the prescribed form was as follows-‘THAT the application is incompetent, riddled on falsehood and thus devoid of merit and should be dismissed in the first instance. THAT there is no competent objection of the director's award filed before this court as by law provided. The one provided is invalid, null and void in law. THAT any alleged proceedings if at all initiated by the director based on that objection was equally invalid, null and void in law. THAT no evidence of any decision/written answer to the objection purportedly made has been tendered as stipulated under Section 52(1) of the Work Injury Benefits Act, 2007 setting aside the assessment made on 16th October 2024. The effect is that the aforesaid assessment remain valid and binding on the applicant. THAT the respondent never objected to the award as assessed by the director in its Reply to demand and sought for time to make good the claimant's claim. The alleged objection is fabricated, an afterthought and the entire application made in bad faith with the sole intention of circumventing the course of justice. (Attached and Marked EK 1 is a copy of the Reply to demand). THAT the applicant has not sufficiently demonstrated that a proper objection was ever lodged to the director DOSH and a decision rendered and communicated to the respondent as by law required which defeats the application. THAT the application is purely an after-thought and a means of defeating justice and should be disallowed.’’** 3. **The appellant produced the decision on the objection at pages 28-29 of the record of appeal as annexed to the application before the lower court.** 4. **The jurisdiction to handle objections on assessment of work injury awards is exclusive to DOSH. The court at the outset finds the Learned Trial Magistrate acted outside its mandate in making a determination on the objection. Section 51 of the WIBA states as follows: ' 51**. Objections and appeals against decisions of the Director 5. 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’. The prescribed form was not placed before the trial court. How did the Learned Magistrate come to the conclusion that the objection produced by the appellant was not in the prescribed form? A casual perusal of the filed objection reveals that the appellant submitted a written objection with particulars containing a concise statement of the reason for the objection. The appellant attached documents relied on. The decision maker is DOSH. Indeed, DOSH understood the objection and rendered a decision in writing and the same was placed before the trial court by the appellant as GK-2( at pages 28-29 of ROA). A Supplementary affidavit dated 10th June 2025 was filed by the appellant and the entire objection document produced as GK1. The document indicated the relief sought to be setting aside of the assessment and called for fresh evaluation.(page 39-40 of ROA) The trial court did not address its mind on the supporting documents of the objection. The decision on the objection was dated 18th December 2024. DOSH accepted the objection and asked for a fresh independent assessment of the employee/respondent. There was no evidence before the trial court to impeach the documents produced in support of the objection and decision. The objection was filed timely and the court agreed with the appellant that the adoption of the award was done prematurely as the time for making objection had not lapsed. The court considered the reply to the demand letter dated 14th November 2024 and noted that it indicated the award had not been uploaded in the DOSH portal to verify authenticity. The court finds that the response letter did not fetter the legal right to object to the award. The fact that the decision on the objection was not copied to the employee cannot be a basis to impeach the decision of DOSH. 6. The appellant vide the supplementary affidavit of Goretti produced a letter dated 10th January 2025 by DOSH addressed to the appellant and copied to the respondent, asking for the response to be presented at their work injury Evaluation clinic for reassessment.(See page 48 of ROA). The process should continue from where it stopped, being the proceeding of the respondent, to reassessment of his injuries at the DOSH work injury re-evaluation clinic. The trial court failed in its determination by failing to evaluate the evidence presented by the appellant before the court on the objection and decision. The respondent, if aggrieved by the decision, ought to have filed an appeal to the court for determination. The Hon Magistrate trespassed into the jurisdiction of the DOSH. CONCLUSION 1. In the upshot, the court holds that the trial court erred in fact and law in failing to allow the application dated 9th January 2025 and set aside its exparte Order dated 13th December 2024. The appeal is allowed. The Ruling and Order of the Hon. D. Kuto (SPM) delivered on 12th August 2025 in Mavoko MCELRC Cause No. E097 of 2024 is set aside and substituted as follows- 1. The Appellant's Notice of Motion application dated 09/01/2025 is allowed with costs. The Judgment and Decree dated 13th December 2024 is set aside. 2. The appellant is awarded costs of the appeal. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Mutua Respondent – Kisiangani