[2022] KEELRC 4067 (KLR)

Tonbi v Vintage Concept Limited & another (Miscellaneous Application 026 of 2022) [2022] KEELRC 4067 (KLR) (30 June 2022) (Ruling)

Neutral citation: [2022] KEELRC 4067 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Miscellaneous Application 026 of 2022

M Mbarũ, J

June 30, 2022

Between

John Kinara Tonbi

Applicant

and

Vintage Concept Limited

1st Respondent

Sanlam General Insurance Company Limited

2nd Respondent

Ruling

1. The application filed application dated February 16, 2022 seeking for orders that this court do adopt the assessment of the Director of Occupational Safety and Health Services (DOSHS) as a judgement of the court a decree for Ksh 2,610,000 do issue in accordance with the assessment jointly and severally against the respondents. The applicant is also seeking for a declaration that the respondents have committee an offence contrary to section 26(6) of the Work Injury Benefits Act (WIBA) for failing to pay the applicant an to commit the directors of the respondents to one year in jail or fines of Ksh 500, 000 or both and to pay for costs of this application.

2. The application is supported by the affidavit of the applicant and on the grounds that he was an employee of the 1st respondent who holds a work injury insurance policy with the 2nd respondent.

3. On December 15, 2019 the applicant sustained a spinal injury while working for the 1st respondent. The 1st respondent filled a DOSH form and reported the accident to the director as required by law. due to the severity of the injuries, the percentage of permanent disability was assessed at 70% and on July 19, 2021 the Director assessed compensation at Ksh 2, 970,000.

4. The applicant served the respondents with the assessment and the director to which the respondent lodged an appeal and the applicant was re-examined by doctors at DOSH and disability percentage reduced to 60% and compensation reduced to Ksh 2, 610,000 but no payment has been effected.

5. The respondents should be jointly and severally be held liable for neglecting to make the payment as required under Section 26(6) WIBA and further they be committed to civil jail and or fined for failing to comply.The applicant has attached his supporting affidavit.

6. In response, the 1st respondent filed the replying affidavit of Janet Kwamboka Nyaboga the director of the 1st respondent and avers that the applicant was an employee since April, 2017 earning Ksh 23, 000 per month but on December 15, 2019 while at work at Kisii University he fell and sustained injuries. He was treated at Gitembe Hospital then to Kenyatta National Hospital.

7. The 1st respondent filed DOSH form and reported the accident to the Director and demand for payment for work injury in the sum of Ksh 2, 970,000 upon assessment. On July 21, 2021 the applicant served a demand notice for payment of Ksh 2,520,000 in compensation for work injury and the 1st respondent informed the 2nd respondent with whom there was a valid WIBA policy No 024/1-2/1/000001 issued on May 21, 2019 but the 2nd respondent failed to make good the demand.

8. The 1st respondent sought for legal advice and booked the applicant for a second medical examination and then lodged objection with the director and the assessment of disability reduced to 60% and based on a wage of Ksh.23, 000 and not Ksh 37, 500 as earlier stated. A review of the compensation was done and the compensation allocated at Ksh 2, 610,000.

9. The 1st respondent has made efforts for the 2nd respondent to settle the claim without success. On November 30, 2021 a record of DOSH was submitted with all the medical records without any payment. The 1st respondent had been insured by the 2nd respondent and the insurance policy was in force at the time of the applicant’s accident but notice of cancellation of the policy was only communicated on December 31, 2019. Such notice of revocation was later revoked through letter dated February 26, 2020 after the 1st respondent had regularised accounts with NCBA bank and the insurance policy continued to be in force.The 2nd respondent ought to have settled the claim for the applicant.

10. In reply, the 2nd respondent filed the replying affidavit of Janette Awidhi the claims manager and who avers that there is no evidence that the applicant was working for the 2nd respondent to justify the instant application. There is no record of the alleged injuries for the 1st respondent to take liability. The 2nd respondent was never served with DOSH forms to confer any liability as alleged and to proceed on this basis will have denied the 2nd respondent a hearing and be condemned unheard.

11. The medical report alleged to have found the application disabled at 70% has not been attached to his application and to which the 1st respondent objected to and caused a re-examination. Following such mattered, there is no demand which has issued to the 2nd respondent to justify the nature of orders sought by the applicant.

12. The applicant and the 2nd respondent attended and agreed to file written submissions.

13. The applicant submitted that under section 26(6) of WIBA has created an offence for both the employer and insurance for failing to pay an award once assessed by the Director following a work injury assessment. In the absence of an enforcement mechanism, under section 87(1) of the Employment Act apply as held in the case of Richard Akama Nyambane v Icg Mitauro Spa [2020] eKLR. the award under WIBA may only be enforced by filing suit with the court under the provisions of section 87 of the Employment Act as held in the case of Ruth Wambui Mwangi & another v Alfarah Wholesalers Limited [2017] eKLR.

14. The 2nd respondent cannot deny liability pursuant to section 26 of the WIBA and is liable jointly and severally to the 1st respondent.

15. The 1st respondent submitted that it had a valid WIBA cover trough the 2nd respondent and who should settle the compensation due to the applicant. There is no deliberate or refusal to settle the applicant’s claim as assessed by the director save such ought to be settled by the 2nd respondent who at all material times had a WIBA cover with regard to work injuries within the respondent entity.

16. The 2nd respondent submitted that despite the law directing that the insurer of an employee whose employee is injured at work should pay the due compensation within 90 days from the date the director has made as assessment and decided on a compensation, the 2nd respondent has not been served with any demand notice or the DOSH forms and particulars of the alleged accident so as to act. the court has jurisdiction to enter judgement as per DOSH assessment as held in Samson Chweya Mwendapoe v Protective Custody Limited [2021] eKLR but such jurisdiction should not be confused with appellate jurisdiction which is expressly donated under section 52(2) of the WIBA in respect of the director’s reply to objection made under section 51 of the same Act.

17. The claim by the applicant was time barred by the time it was lodged with the director and there was no notification upon the 2nd respondent.

Determination 18. Upon an assessment of work injury by the director, and based on such assessment the compensation awarded therefore, an employee who has suffered injury is to be compensated by the employer.

19. Under WIBA, there is no enforcement mechanism and the best practice has been to apply the provisions of section 87 of the Employment Act, 2007 to move the court and secure a decree and based on which the employee who has suffered a work injury, based on the assessment and award of compensation by the director is able to enforce the award as held inRuth Wambui Mwangi & another v Alfarah Wholesalers Limited [2017] eKLR.

20. The applicant is seeking to have both the employer and the insurer held liable to pay his due compensation as assessed and awarded by the director. The employer’s case is that it had secured a WIBA policy with the insurer way before the work injury and despite demand and notice being issued and all documents being placed with the insurer, there is no payment.

21. The insurer on the other hand asserts that the DOSH claim ought to have been placed with them within 90 days of assessment, there is no demand from the applicant and in this regard the claim is time barred and there is no liability to pay.

22. Under section 7 of WIBA, every employer is directed to obtain and maintain an insurance policy in respect of any liability that the employer may incur following work injury.

(1) Every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur under this Act to any of his employees. 23. In this regard, the 1st respondent obtained a WIBA policy cover with the 2nd respondent being Policy No 024/102/1/000001 on May 21, 2019 who ought to have paid the assessed compensation by the director at Ksh 2, 970,000 but upon legal advice, the 1st respondent made objections to the award and the assessment was re-done and the compensation reviewed to Ksh 2, 610,000 and despite placing a demand and all records with the 2nd respondent, there is no payment.

24. The 2nd respondent has not denied or that on November 30, 2021 the 1st respondent submitted a copy of DOSH form dated February 19, 2021 and a demand letter dated July 21, 2021, medical report dated September 10, 2021 and has since not settled the claim.

25. Whereas the employee who has suffered a work injury is liable to pay compensation by the employer, an employer who has secured itself in this regard and obtained an insurance policy should enjoy such facility in the eventuality of a work injury. This is the essence of section 7(1) of the WIBA. Liability is upon the employer who should secure its rights from the insurer.

26. The application of 90 days for payment of the due compensation is made under section 26(4) of the WIBA to the advantage of the subject employee and not the other way round as asserted by the 2nd respondent that the claim is time barred as no demand was done within 90 days.

27. The import of section 26(4) it that an employer or insurer against whom a claim for compensation is lodged shall settle the same within 90 days.

(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 the lodging of the claim 28. The 1st respondent has undertaken its role and submitted all the necessary documents as evidenced in the replying affidavit of Janet Kwamboka Nyaboga dated May 26, 2022. Such submission was effected on November 30, 2021 attaching all the necessary records with regard to the director’s assessment and award of compensation at Ksh 2, 610,000 which was arrived at after the initial award was objected to and the applicant subjected to a second medical examination and the director did a review of the award on October 7, 2021.

29. The second review following the objection was the last decision of the director pursuant to section 26 of the WIBA. Even in a case where the 2nd respondent were to contest the issue of time, which is not justified in this case. From October 7, 2021 to November 30, 2021 such is a period of less than 90 days.

30. As analysed above, the period of 90 days under the WIBA is for the benefit of the subject employee injured while at work and following assessment and award of compensation by the director is allowed to lodge a claim and the employer and insurer should settle the same within 90 days.

31. The applicant is seeking for orders that the director’s assessment of compensation at Ksh 2, 610,000 be adopted as the judgement and decree of the court which is justified.

32. The applicant is further seeking that the respondent be committed to jail and fined for failing to comply and pay the due compensation in terms of section 26(6) of the WIBA and which matter in view of the first orders sought is premature. Upon the judgement and decree of the court, the respondents are bound. In the event there is no compliance, the applicant is at liberty to execute as appropriate.

33. Accordingly, the application dated February 16, 2022 is hereby found with merit and is allowed in the following terms;a.The court adopts the assessment of the director of Occupational Safety and Health Services (DOSHS) as a judgement of the court in the sum of Ksh 2,610,000;b.The award shall be paid jointly and severally by the respondents;c.Award (a) above shall be settled within 90 days failure to which the applicant shall be at liberty to execute as appropriate;d.Costs awarded to the applicant.

DELIVERED IN COURT AT NAIROBI THIS 30TH DAY OF JUNE, 2022. M. MBARŨJUDGEIn the presence of:Court Assistant:……………… and ……………