https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1829

Saos Manpower Services Kericho v Director of Occupational Safety & Health Services & another (Appeal E001 of 2026) [2026] KEELRC 1829 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1829 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kericho Appeal E001 of 2026 J Rika, J June 30, 2026 Between Saos Manpower Services Kericho Appellant and Director of Occupational Safety & Health Services 1st Respondent Chepng’etich Doreen 2nd Respondent (An Appeal from the award of the 1st Respondent dated 19th December 2025) Judgment 1.The 2nd Respondent, an Employee of the Appellant, suffered work injury on 31st January 2025. 2.The accident was notified to the Directorate of Occupational Safety and Health [DOSH] by the Appellant, in accordance with the Work Injury Benefits Act, 2007 [WIBA]. 3.She was awarded Kshs 745,190.96. The Director’s award is dated 19th November 2025. 4.The Appellant filed an objection to the 1st Respondent, under Section 51 of WIBA. 5.The objection was based on the single ground that, ‘’the insurance company is seeking to refer the Claimant to a second opinion doctor.’’ 6.The Director declined the objection, in a decision dated 19th December 2025. The Director explained that Section 51 of WIBA requires the objection to be accompanied by concise statement of the circumstances in which the objection is made; the relief or order which the objector claims; and the question which the objector desires to be determined. 7.According to the Director, the Appellant herein did not set out the relief or order claimed; and the question the Appellant desired the Director to determine. 8.Invoking a decision of the E&LRC in Stephen Wangusi Nyongesa v. Dot.Com Bakery Limited [2021] e-KLR, the Director held that the Appellant did not establish the law supporting a second medical opinion. 9.The objection was declined, paving the way for this Appeal. 10.The Appellant relies on the Memorandum of Appeal dated 13th January 2025 [correct year ought to be 2026]. 11.The Grounds in summary are: -a.The Director erred by denying the Appellant the right to a 2nd medical opinion, under Section 25[1] WIBA and Articles 10, 41, 47, 48 and 50 of the Constitution.b.The Director erred in declining the Appellant’s objection.c.The Director misapplied the decision of the Court in Nyongesa v. Dot.Com Bakery Limited.d.The Director erred by assessing the 2nd Respondent at 30% permanent disablement, based on a single medical report.e.Dr. Maoga who prepared the medical report did not examine the 2nd Respondent, and was not appointed by the Director.f.The Director erred by making an award without investigation / inquiry on the accident and injury.g.The award was manifestly high. 12.The Appellant proposes: -a.The Appeal is allowed.b.The Director’s award is set aside.c.The Director is compelled to refer the 2nd Respondent for a second medical opinion to be carried out by a medical practitioner designated by the Appellant.d.In the alternative, a medical board be constituted to review and assess the 2nd Respondent.e.Costs of the Appeal be borne by the Respondents.f.Any other suitable order. 13.Parties were directed on 22nd April 2026, to file and exchange their submissions. The Court Finds: - 14.This Court has expressed its reservation in past decisions, on the propriety of naming the Director of Occupational Safety and Health, as a Respondent, in Appeals originating from his work injury awards. 15.Under Section 52 of WIBA, the Director is a decision-maker. He is not a party to the award. The Appeal is made against his decision, not against him, so why should he be made a party on Appeal? How is the Court to for instance, condemn the Director, a decision-maker, to pay costs of the Appeal, as proposed by the Appellant. 16.The role of the Director in making assessments and awards under WIBA, is quasi-judicial. He is a decision-maker and should not be drawn into a dispute between an Employer and an Employee. His role as a decision-maker will not be discharged independently and impartially, if he is made a party to Appeals originating from his award. He is not a party on assessment, award or objection under WIBA. There is no justification in making him a party on Appeal. 17.Section 25 of WIBA, states that 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 a medical practitioner designated by the Director or the Employer, with the approval of the Director. 18.It is not clear to the Court why, an Employee should be medically examined, after compensation has been paid out to him. Is the process not complete, and file closed, when the award of the Director has been paid out? 19.Unless there are other processes post -compensation, which are not clarified in WIBA, the Court has difficulty in understanding why Section 25 makes it possible to subject an Employee ‘’to whom compensation has been paid,’’ to a second medical examination. 20.The Director did not address Section 25, in responding to the objection received from the Appellant. He merely held his ground that there was no room for 2nd medical opinion. 21.The submission by the Director that there is no known law on second medical opinion appears to the Court, to be incorrect. 22.Section 25 allows an Employee who claims compensation, or who has already been paid compensation, or to whom compensation is payable to submit to medical examination requested by the Director or the Employer. 23.It was not clear who made request for the medical report under Part 11 of the Notice by Employer of An Occupational Accident/Disease. The Appellant submits that the 2nd Respondent was not examined by Dr. Maoga. The report is sketchy. It is not indicated who paid for the medical report. There is no clear medical explanation, on the conclusion that the 2nd Respondent sustained permanent incapacity, and that percentage of permanent incapacity was 30%. 24.While it is indicated that the 2nd Respondent was an outpatient from 1st February 2025 to 7th March 2025, it is not clear when she was examined by the Doctor who prepared the medical report. The report itself is dated 24th October 2025. Section 48 of WIBA requires that a medical practitioner who examines an Employee, shall within 14 days after the first examination, furnish the medical report to the Director. 25.The existing medical report does not capture details on the date the 2nd Respondent was examined, and when the report was furnished to the Director. 26.Without giving reasons, the attending medical practitioner stated that further examination was not required, before final assessment of permanent incapacity could be given. 27.Was it not necessary to seek the Appellant’s view, before making this conclusion? Does not an Employer have a say on whether the first medical opinion, should be the only and final opinion? 28.The Director’s response, repeated under paragraph 23 of the replying affidavit sworn by Assistant Director Anthony Wanjau on 17th April 2026, that there is no procedure for 2nd medical opinion, would foreclose verification of the actual injury sustained by an Employee, and abrogate the right of an Employer to call for a second medical opinion. 29.Wanjau states that the Director, did not deny the Appellant the right to have the 2nd Respondent undergo a second medical examination. It was not possible to have a second medical opinion, according to Wanjau, because there was no legal provision, ’’ supporting the said second opinion sought by the objector.’’ 30.The Director acknowledges that the Appellant has a right, but doubts that the right is exercisable, because there is no legal provision, allowing for its exercise. But does not Section 25 WIBA, allow an Employer to have an Employee examined, by a medical practitioner chosen by an Employer? 31.The decision of the E&LRC in Nyongesa v. Dot.Com Bakery limited cited by the Director in declining objection, is firstly, not binding on this Court. 32.Secondly, it is distinguishable. There was no objection filed in that award. The award came up for enforcement, and the Court declined the Employer’s insistence on having a second medical opinion, there having been no objection filed, against the award of the Director. The Employer had made a partial payment is settlement of the award, at the time the Employer’s Insurance agitated for a second medical opinion. The decision is distinguishable from the current Appeal. 33.That Section 25 allows an Employee to be subjected to medical examination, even after compensation has been paid, underscores the importance of clear medical evidence, in supporting work injury awards made by the Director. 34.Section 25 of WIBA does not state that there shall be only a single medical report, justifying assessment and award of the Director. 35.The Director and the Employer are entitled to have the Employee medically examined. The Employee is entitled to have his own medical practitioner, at the examination by a designated medical practitioner. The Appellant was entitled to have the 2nd Respondent examined by a medical practitioner of the Appellant’s choice. 36.The Supreme Court of Kenya, in Law Society of Kenya v. Attorney-General & Another, KESC 16 [KLR] addressed itself on Section 25 WIBA, stating that: -‘’ The effect of Section 25 of the Act is therefore, to ensure that the medical examination and ensuing report is objective, fair, accurate and sound. This section consequently secures the interests of both Employees and Employers, advances equality and does not accord differential treatment of any party...’’ 37.Equality of treatment demanded that the Director does not deny the Employer, the right to have the 2nd Respondent, undergo a 2nd medical examination. 38.The 1st medical opinion was not interrogated by the Employer as would be the case, in an adversarial judicial process. The author of the 1st medical opinion remained in the shadows, and was not available to the Employer, to justify his medical findings and conclusion. WIBA does not require that witnesses present oral evidence. A second medical opinion, requested by an Employer, in the process of assessment and award of work injury benefits, a process which is intended to be less adversarial and contentious than a judicial process, ought not to have been shut out. It would have assisted the Director in making an objective assessment and award. 39.Work injury claims, like common law injury claims, must be assessed on the basis of objective medical evidence, which is open to scrutiny, and which can legally be tested by the concerned parties, even though not through oral hearings. 40.The Director remains a quasi-judicial officer. The law expects him to remain impartial. He must evaluate evidence fairly, and accord all the parties before him equal opportunity to present and interrogate evidence. 41.There were sound reasons, backed by WIBA, and the decision of the Supreme Court cited above, to have the 2nd Respondent subjected to a second medical examination.It is ordered: -a .Appeal is allowed.b.Award of the Director dated 19th November 2025 is set aside.c.The 2nd Respondent shall be re-examined by a medical practitioner designated by the Appellant, and approved by the Director.d.No order on the costs of the Appeal. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT KERICHO, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JUNE 2026.JAMES RIKAJUDGE