https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1689

Republic v Director of Occupational Safety and HealthService & another; Meraki Packaging Kenya Ltd (Ex parte Applicant) (Judicial Review E025 of 2026) [2026] KEELRC 1689 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1689 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review E025 of 2026 JW Keli, J June 19, 2026 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AGAINST THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES AND IN THE MATTER OF THE WORK INJURY BENEFITS AСТ, САР 236, LAWS OF KENYA AND IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES,2010 AND IN THE MATTER OF RULE 10 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT (PROCEDURE) RULES, 2024 AND IN THE MATTER OF ARTICLES 2, 10, 22, 23, 41, 47, 48, 50 AND 159 OF THE CONSTITUTION OF KENYA, 2010 Between Republic Applicant and The Director of Occupational Safety and Health Service Respondent and Edward Wabule Bickett Interested Party and Meraki Packaging Kenya Ltd Ex parte Applicant Judgment 1.The Ex Parte Applicant was the employer and upon receipt of the Assessment of damages on injury of its worker filed Objection against the award with the respondent and on failing to receive a decision, filed a judicial review application vide Notice of Motion dated 13th March 2026 pursuant to the leave of the court granted on 11th March 2026. The suit was brought under Articles 47, 50(1), & 159(2)(d) ofthe Constitution, Order 53 Rule 3 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Sections 7, 8 and 9 of the Fair Administrative Action Act, 2015 and Section 8 and 9 Law Reform Act Cap 26 and all enabling powers and provisions of the Law and sought for the following Orders-a.That an Order of Mandamus do issue compelling the Respondent to issue a written determination on the Ex- Parte Applicant's objection dated 15th January, 2025, pursuant to Section 52 of the Work Injury Benefits Act, Cap 236, within fourteen (14) days of the date of this Honourable Court's order.b.That this Honourable Court be pleased to issue such further and/or other relief as it may deem just and expedient in the circumstances.c.That the costs of this Application be provided for. Grounds of the suit 2.That the Director of Occupational Safety and Health Services issued an award dated 3rd December, 2024 against the Ex Parte Applicant under the provisions of the Work Injury Benefits Act (WIBA). 3.That being dissatisfied with the said award, the Ex Parte Applicant promptly lodged a formal objection on 15th January, 2025 pursuant to Section 51 of the Work Injury Benefits Act, challenging the award of permanent disability at 5% and the computation made by the DOSH in DOSH/WIBA/4. The same was duly received/stamped on 15th January, 2025. 4.That the despite the objection having been lodged timeously, the Respondent failed and/or neglected to render a written decision thereon within the statutory period prescribed under the Act. 5.That notwithstanding the pendency of the objection, enforcement proceedings have been commenced against the Ex Parte Applicant in Nairobi ELRC Misc. Application No. Eo37 of 2026, and the matter is fixed for mention on 24th March 2026. 6.That on 11th March 2026, this Honourable Court granted leave to the Ex-parte Applicant to file this application. 7.That the Respondent's failure to discharge its statutory obligation violates the Exparte Applicant's rights under Articles 47 (right to fair administrative action) and 50(1) (right to a fair hearing) ofthe Constitution of Kenya. 8.The suit was supported by the affidavit of David Nyaundi dated 13th March 2025 where he exhibited documents in support of the judicial review application(suit) 9.The application was unopposed. Decision 10.The application was unopposed. The exparte applicant filed written submissions. 11.The remedy sought is a Judicial Review Order of Mandamus. In defining the scope Order of Mandamus the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) stated-‘24.The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”25.What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. We can do no better than give examples.’’ The court applied the foregoing decision in the determination of the suit. 12.In the instant case, the Ex Parte Applicant notified the respondent of the accident on 11th October 2024 of its employee, the interested party( DN-1 was a copy of the ML/DOSH/FORM 1 dated 11th October 2024). 13.The respondent issued an assessment of the damages award dated 3rd December 2024 (DN2 was a copy of award, DOSH/WIBA/FORM 4 dated 3rd December 2024). 14.The Ex Parte Applicant was dissatisfied with the award and filed an objection on 15th January 2025 pursuant to section 51 of WIBA. (DN3a,3b and 3c were the copies of the objection documents). 15.The respondent acknowledged the objection vide letter dated 23rd January 2025 and noted the objection was filed within the stipulated timeline and that the objection sought relief of examining the employee. The respondent requested the Ex Parte Applicant to provide a place, reasonable date and a medical practitioner to carry out the examination for consideration as per section 25(1) of the WIBA(DN-4). 16.The Ex Parte Applicant responded vide letter dated 28th January 2025 and complied with the letter by the respondent and provided details of their doctor (DN5a). The interested party was examined by Dr Adegu William on the 28th February 2025 who assessed the permanent incapacity at 2%. (DN-6 was a copy of the medical report dated 4th March 2025). 17.The Ex Parte Applicant stated they have not received the decision on the objection since then, thus the suit. The application is not opposed. 18.Section 25(1) of WIBA states-‘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.’ 19.Section 51 states 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 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.’ 20.In the objection, the Ex Parte Applicant sought to be allowed to medically re-examine the interested party to authenticate the injuries and percentage of permanent incapacity. That was allowed and a medical report has been exhibited. 21.The logical conclusion was that after the re-examination and a medical report having been prepared, the respondent would make a decision on the objection to either alter the award or sustain it. A decision on the objection is required from the DOSH(Respondent ) under section 52 of WIBA to wit- ‘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.’ 22.The medical re-examination of the worker was part of the proceedings and not the decision on the objection. The respondent was obliged to review the medical report of Dr Adegu William submitted by the Ex Part Applicant following the re-examination and determine whether to vary or uphold his decision. This did not happen. The court finds that respondent is guilty of failing to perform his statutory duty for lack of decision on the objection after the medical re-examination. The order of Mandamus is sought to compel the respondent to perform a statutory duty as stated in Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”(Cited in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) ) 23.The court has the power to issue the order of Mandamus to compel the respondent to perform his statutory duty under section 52 of WIBA, on the objection and consequent to the medical re-examination of the interested party. The judicial review application is allowed as follows-a.That the Honourable Court is pleased to issue an Order of Mandamus compelling the Respondent to issue a written determination on the Ex- Parte Applicant's objection dated 15th January, 2025, pursuant to Section 52 of the Work Injury Benefits Act, Cap 236, within fourteen (14) days of the date of this Honourable Court's order.b.The Ex Parte Applicant is awarded costs of the application payable by the respondent 24.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoEx Parte Applicant – BettRespondent- No AppearanceInterested Party- No appearance