https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1460

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **APPEAL NUMBER E054 OF 2024** **BETWEEN** TIMSALES LIMITED ......................................................................APPELLANT **AND** PATRICK MBURU ...................................................................…RESPONDENT [An appeal from the decision of the Director, Occupational Safety & Health Services [DOSH] dated 4th July 2024 involving the Parties herein] *Rika J* *Court Assistant: Emmanuel Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Wachira Wekhomba Aim & Associates, Advocates for the Appellant* *Rubua Ngure & Company, Advocates for the Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Respondent was awarded Kshs. 751,370 in work injury benefit by the Director of Occupational Safety and Health [the Director], on 21st February 2023. 2. The Appellant raised objection, which was declined through a response dated 4th July 2024 by the Director. 3. The Response, which is the basis of this Appeal, states: - ‘’The Objection letter received on 29th February 2024, was filed late, after the stipulated 60 days, under Section 51 of WIBA 2007, and therefore, is considered null and void, and the decision of DOSH stands.’’ 1. In the Amended Memorandum of Appeal amended on 9th June 2025, the Appellant lists 6 Grounds of Appeal, summarized as below: - 2. The Director erred by refusing to make such inquiries necessary to determine the claim, in accordance with Section 23, WIBA. 3. The Director erred in failing to allow the Appellant to refer the Respondent for a second medical examination, in accordance with Section 25, WIBA. 4. The Director erred in failing to consider the Appellant’s objection, received on 4th April 2023. 5. The Director erred by failing to reply to the objection within 14 days, by replying on 4th July 2024. 6. The Director erred by giving a final award without full assessment of the Respondent. 7. The Director violated the Appellant’s right of access to justice. 8. The Appellant proposes:- 9. The Appeal is allowed. 10. The Director’s response dated 4th July 2024 is reviewed and / or set aside. 11. Further orders that may be just and expedient. 12. Costs of the Appeal. 13. Parties agreed that the Appeal is considered and determined on the strength of the Record of Appeal and Submissions. They confirmed / undertook filing and exchange of Submissions at the last appearance before the Court, on 24th March 2026. **The Court Finds**: - 1. The Respondent filed an application dated 26th June 2025, asking the Court to strike out the Appeal, on the ground that the Appellant’s Objection to the Director was presented late. 2. The Parties in effect argued Ground [iii] of the Memorandum of Appeal: whether the Director erred by failing to consider the Appellant’s objection, on the ground that it was received late. 3. It is in the ruling of the Court dated 31st October 2025, that: the award was made on 23rd February 2023; Objection form drawn by the Appellant is dated 17th March 2023; it was forwarded to the Director through a letter from the Appellant’s Advocates dated 17th March 2023; and it was indicated through the stamp of DOSH, to have been received on 4th April 2023. 4. It was the conclusion of the Court that the Objection was filed within the stipulated period of 60 days. 5. It was held that the response by the Director declining Objection on the ground of late filing, was incorrect, in light of the stamp by DOSH, indicating to have received the Appellant’s forwarding letter, on 4th April 2023. 6. For the reasons explained in the ruling dated 31st October 2025, Ground [iii] of the Appeal is allowed. 7. Upon setting aside the response by the Director, the effect is that the Objection would be deemed to have been received within the stipulated time of 60 days. 8. The Objection is in writing and in the prescribed form, in accordance with Section 51[2] of the WIBA. 9. The Director shall, within 14 days of receiving a copy of this Judgment, give a written answer to the Objection, varying or upholding his decision, and giving reasons for the decision objected to, and within the same period, send a copy of his decision to any other person affected by the decision. 10. The Appellant/Objector may, within 30 days of the Director’s reply being received by the Objector, appeal to this Court against the substantive decision of the Director. 11. It is not necessary to go into other, Grounds of Appeal, the primary Ground being whether the initial Objection was filed and received on time. The other Grounds, especially those touching on Sections 23 and 25 of the WIBA, are substantive Grounds, which would result in setting aside of the award of the Director. The Appellant does proposes setting aside the response by the Director, declining to hear its Objection. It does not propose setting aside of the award itself. The issue on appeal is primarily whether the Objection was filed and received on time, and whether is should be considered on merit, by the Director. It is not therefore necessary for the Court to look into the other Grounds of Appeal. **IT IS ORDERED**:- 1. **The Appeal is allowed on Ground [iii] of the Amended Memorandum of Appeal.** 2. **The Director shall consider the Objection within 14 days of receiving a copy of this Judgment.** 3. **The Objector may file a substantive Appeal within 30 days of receiving the Director’s Reply, if not satisfied with the Reply.** 4. **In event the Director declines the Objection and affirms his award, the Respondent is at liberty to seek execution before the Court, in accordance with the law.** 1. **No order on the costs of the Appeal.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5] of the E&LRC [Procedure] Rules, 2024, this 29th day of May 2026. James Rika Judge