https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1736

Waiganjo v New Kenya Co-operative Creameries Ltd (Cause E016 of 2025) [2026] KEELRC 1736 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1736 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E016 of 2025 AN Mwaure, J June 19, 2026 Between Reuben Kimani Waiganjo Claimant and New Kenya Co-operative Creameries Ltd Respondent Ruling Introduction 1.The Claimant instituted this suit vide Statement of Claim dated 3rd March 2025, seeking judgment against the Respondent for:i.An order directing the Respondent to pay the Claimant a sum of Kshs.1,363,293.55/= being compensation by the Director of Occupational Safety and Health Services to the Claimant upon the award being adopted as an order of this Honourable Court.ii.Costs of this suit.iii.Interest at court rates from the date of award by the Director of Occupational Safety and Health Services. Claimant’s case 2.The Claimant avers that he was employed by the Respondent as a fitter since 1990 under payroll number 1067W, sustained a workplace injury on 10th January 2018 while replacing piston seals on an FBF homogenizer. 3.During the task, the Claimant avers that the operator inadvertently drove the machine, crushing the Claimant’s left‑hand index finger and causing a fracture and deep cut. 4.The Claimant avers that he was treated at Benedict XVI Catholic Hospital from 10th January to 8th March 2018 and subsequently reported the injury to the Directorate of Occupational Safety and Health Services, which registered it as WIBA/NYA/039/2018. 5.On 4th February 2019, the Claimant avers that the Directorate assessed compensation payable by the Respondent at Kshs.1,363,293.55/=. 6.Despite reminders, including a directive dated 7th June 2022, the Claimant avers that the Respondent failed to pay, later acknowledging the debt in a letter dated 10th June 2024 and requesting additional time to liaise with its insurer to process the compensation. 7.The Claimant avers that he remains entitled to claim compensation even though the limitation period has lapsed, relying on the Respondent’s letter dated 10th June 2024, which expressly acknowledged the debt. He invokes Section 23(3) of the Limitation of Actions Act, Cap 22 Laws of Kenya, which provides that acknowledgement or part payment of a debt gives rise to a fresh accrual of the right of action. 8.Accordingly, the Claimant contends that the Respondent’s acknowledgement revived his right to recover the assessed compensation. Respondent’s response to the statement of claim 9.The Respondent, through the Honourable Attorney General, opposed the statement of claim by filing a response to the statement of claim dated 2nd May 2025. 10.In the response, the Respondent denies most of the allegations in the Claimant’s statement of claim except for specific admissions relating to employment details, the occurrence of the injury, and the compensation assessment by the Directorate of Occupational Safety and Health Services. 11.The Respondent disputes liability for the injury and denies owing any payment to the Claimant, asserting that the claim lacks merit and constitutes a waste of the court’s time. 12.It maintains that the Claimant is not entitled to the reliefs sought and prays that the suit be dismissed with costs. 13.Parties canvassed the claim by way of written submissions. Claimant’s submissions 14.The Claimant submitted that, being a long‑serving fitter employed by the Respondent since 1990, he sustained a workplace injury on 10th January 2018 while lawfully performing his duties, resulting in a crushed left index finger. The injury occurred in the course of employment and was duly reported to the Directorate of Occupational Safety and Health Services under reference WIBA/NYA/039/2018. Medical records from Benedict XVI Catholic Hospital confirmed the nature of the injury. Under section 10 of the Work Injury Benefits Act, 2007, the employer is liable to compensate employees injured at work, with adjudication powers vested in the Director under sections 16 and 23(1) of WIBA. The Claimant relied on the cases of Purity Wambui Murithii v Highlands Mineral Water Co. Ltd [2015] KECA 981 (KLR), the court stated as follows:“It is imperative at this juncture to determine how the accident occurred and who was responsible for the same. It is not in dispute that the appellant fell down and injured herself while cleaning the production section.” 15.In the case of Attorney General v Law Society of Kenya & Another [2017] KECA 176 (KLR), the court stated as follows:“Section 16 as read with section 23(1) confers powers of adjudication of any claim for compensation arising from injury or death in the workplace upon the Director and expressly bars institution of court proceedings by the aggrieved employee.The quarrel with section 23 according to the learned judge is that it grants to the Director unlimited judicial powers in “making inquiries” in relation to work-related accident, and in making awards; that after receiving the complaint he alone is required to proceed to determine the question, and to resolve the claim on liability; that since personal injury and death in the workplace is, by nature so litigious, such a claim ought to go through a judicial process.” 16.The Claimant contended that the Director of Occupational Safety and Health Services lawfully assessed his compensation at Kshs.1,363,293.55/= under section 23 of the Work Injury Benefits Act, 2007, which empowers the Director to investigate workplace injuries and determine compensation. The Claimant relied on the cases of Attorney General v Law Society of Kenya & Another(supra) and Charles v Cheto[2025] KECA 784 (KLR), which affirm that the Director has exclusive jurisdiction unless an appeal is lodged under Section 52 of WIBA. The Respondent neither objected nor appealed but acknowledged the debt in writing on 10th June 2024, thereby admitting liability and breaching its statutory duty under section 26 of WIBA by failing to pay within 90 days. Citing the case of Kingori v Magic Slots Limited [2026] KEELRC 451 (KLR), the Claimant submitted that non‑payment creates a liquidated claim enforceable by judgment and decree. 17.The Claimant avers that having proved his case on a balance of probabilities, the Claimant seeks payment of Kshs.1,363,293.55, interest from the date of the award, and costs of the suit, asserting that the Respondent’s failure to comply with the Director’s lawful award warrants enforcement, urging the court to allow it as prayed. Respondent’s submissions 18.The Respondent submitted that enforcing the award is legally untenable, procedurally defective, and an abuse of process. The Respondent contended that under WIBA, original jurisdiction lies with the Director, and that courts intervene only through the appellate framework after exhaustion of statutory remedies. 19.The Respondent maintains that the Director’s assessment is an administrative determination, not a decree capable of execution, and relied on the cases of Law Society of Kenya v Attorney General(supra), Kenya Ports Authority v Silas Obengele [2006] KECA 371 (KLR), and West Kenya Sugar CO Ltd v Tito Lucheli Tangale [2021] KEELRC 1920 (KLR) to reinforce this position. The Respondent further argued that the Claimant failed to exhaust statutory mechanisms, invoking the doctrine of exhaustion as affirmed in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR). 20.The Respondent concluded that the suit is premature, unsupported by evidence, and should be dismissed with costs. Analysis and determination 21.The court has considered the pleadings herein together with the rival submissions by both parties; the issues for determination are as follows:i.Whether the suit is properly filed before this Honourable Court;ii.If (i) above is in the negative, whether the court can adopt the award of the Director’s assessment; andiii.Who should bear the costs? 22.Rule 69 of the Employment and Labour Relations Court(Procedure) Rules 2024 provides as follows:“Where parties have entered into a conciliation,negotiation or mediation agreement, or, are bound by an arbitral award or a lawful decision reached in Alternative Justice Systems, a party may file the award, decision or agreement for adoption and enforcement as an order of the Court.An application under sub-rule (1) shall be by way of a miscellaneous application instituted through a notice of motion supported by an affidavit exhibiting the award, decision or agreement together with all relevant documents.” 23.Section 89 of the Employment Act provides as follows:“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 24.In Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR) the court held that the claim seeking enforcement of the Director’s award dated 11th August 2015 is statute‑barred pursuant to Section 90 of the Employment Act, 2007, which prescribes a mandatory limitation period of three years for employment‑related causes of action. 25.In this instant case, the Claimant avers that he sustained a workplace injury on 10th January 2018 while replacing piston seals on an FBF homogenizer, during which the operator inadvertently drove the machine, crushing his left‑hand index finger and causing a fracture and deep cut. He was treated at Benedict XVI Catholic Hospital between 10th January and 8th March 2018, after which he reported the accident to the Directorate of Occupational Safety and Health Services, which formally registered the claim under reference WIBA/NYA/039/2018.The Claimant argues that despite the lapse of the limitation period, he remains entitled to pursue compensation because the Respondent expressly acknowledged the debt in its letter dated 10th June 2024. He relies on Section 23(3) of the Limitation of Actions Act, Cap 22, which provides that acknowledgment or part payment of a debt gives rise to a fresh accrual of the right of action, thereby reviving his claim. The Respondent on the other hand, argues that that under WIBA, original jurisdiction lies with the Director, and that courts intervene only through the appellate framework after exhaustion of statutory remedies. 26.As already explained, the Claimant filed a claim to adopt his award assessed by the Director of Occupational Safety and Health while the statutory period of three years had already expired.Between him and the Director they were following the payment from the Respondent.On 10th June 2024 the Respondent wrote to the Director of Occupational Safety and Health Services and apparently to update the said Director position of the award. They accepted the Claimant suffered work related injury and was treated at the expense of the Respondent.They further stated that they reported matter to their insurance,the underwriter and the insurance has been promising to settle the same. They said they were still following it and requested for patience as they awaited payment from Amaco or pursue alternative approach to have their pay. 27.The Claimant on the basis of this letter by the Respondent submitted that the same translated to acknowledgment of liability. They relied on Section 23(3) of the Limitation states as follows:-“Where a right of action has accrued to recover a debt or other liquidated pecuniary claim or a claim of a movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or last payment.” 28.The court is persuaded by the aforesaid law that the Claimant is entitled to his award since the Respondent acknowledged owing the same on 10th June 2024. The claim was filed on 3rd March 2025. 29.The court acquises that the Respondent did not object or appeal the award but infact he acknowledged it. The court further states that even if the right procedure for the Claimant to seek adoption of the award was through a Miscellaneous application not a claim nevertheless the court will not deny justice to a deserving party because of procedural technicalities as well stated in article 159(2)(d) of the Constitution 2010. 30.The court has considered the pleadings and submissions of the Respective parties and finds that the Claimant is entitled to have his award as assessed by the Director of Occupational Safety and Health Services at Kshs.1,363,293/35 adopted as an order of this court. 31.The court will award costs to the Claimant and interest at 14% per annum from the date of this judgment till full payment. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.