https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1555

Achola v Handyman Staffing Solutions (Miscellaneous Application E008 of 2025) [2026] KEELRC 1555 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1555 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Miscellaneous Application E008 of 2025 DN Nderitu, J June 4, 2026 Between William Siamba Achola Applicant and Handyman Staffing Solutions Respondent Ruling I. Introduction 1.The applicant, through Wafula Wanjala & Co. Advocates, filed a notice of motion (the application) dated 22nd October 2025 seeking for the following orders –1.Spent.2.That the court be pleased to adopt the assessment of the Director of Occupational Health and Safety as an order of the Court as contained in DOSH/WIBA 4 dated 22nd October 2019.3.That a decree be issued in accordance with the assessment of the director of occupational health and safety for the sum of Kshs794,230.61 plus interest (12% pea for 6 years) from date of assessment in the sum of Kshs571,846.04, making a total of Kshs1,366,076.65.4.That costs of the application be paid by the respondent. 2.The application is expressed to be brought under Section 10(1) & (2), and 26(4) of the Work Injury Benefits Act, and, all enabling provisions of law. 3.The application is based on the grounds on the face of it and supported with the affidavit of the applicant, sworn on even date, with several annexures thereto. 4.Upon service of the application, the respondent, through Olindo Ambala LLP Advocates, filed a Notice of Preliminary objection dated 21st January 2026, which was premised on the grounds that – the claim to enforce the Director’s award of 31st August 2020 as herein is time-barred pursuant to Section 89 of the Employment Act, 2007. 5.The Respondent later filed a replying affidavit, sworn by Elly Masinde, the Human Resource Manager of the Respondent, on 26th January 2025. 6.By consent and upon directions by the court, the application was canvassed by way of written submissions. Mr. Wafula, for the applicant, filed written submissions dated 10th February 2026, and Mr. Olindo, for the respondent, filed submissions dated 5th February 2026. II. The Evidence 7.In the supporting affidavit by the applicant, it is deponed that he was employed by the Respondent as a Tractor Driver and sustained work-related injuries on 20th September 2019 while acting in the course of his employment. He stated that he received treatment at various hospitals, including Bungoma County Referral Hospital and Friends Lugulu Mission Hospital, where medical reports confirming the injuries sustained were prepared. 8.The Applicant further averred that the accident was reported to the Director of Occupational Safety and Health Services, Bungoma, and a DOSH/WIBA 4 Form was duly completed. Thereafter, the Director assessed compensation in the sum of Kshs794,230.61 and issued the assessment to both the Applicant and the Respondent on 12th November 2020. 9.According to the Applicant, despite service of the assessment and demand for payment, the Respondent refused, neglected and/or ignored to settle the assessed compensation. He deponed that he had made numerous follow-ups with both the Director’s office and the Respondent without success, thereby causing him prejudice. 10.The Applicant contended that under Section 26(4) of the Work Injury Benefits Act (‘the Act’), an employer against whom a compensation claim is lodged is required to settle the same within ninety days, and that failure to comply constitutes an offence under Section 26(6) of the Act. He further stated that the Respondent had neither preferred an appeal nor challenged the Director’s assessment within the statutory timelines, rendering the assessment final and binding. 11.The Applicant also deponed that the assessed amount had accrued interest at the rate of 12% per annum from the date of the award, amounting to Kshs571,846.04, thereby bringing the total claim to Kshs1,366,076.65 together with costs. 12.He therefore urged the Court, in the interests of justice, to adopt the Director’s assessment as a judgment of the Court and issue a decree to enable execution against the Respondent for recovery of the compensation due. 13.In its response as embodied in the Replying Affidavit, sworn by Elly Masinde, the Human Resource Manager of the Respondent, it is deponed that the Application was founded on falsehoods, half-truths and misleading legal arguments intended to mislead the Court and divert attention from the substantive legal issues in dispute. 14.The Respondent contended that in matters concerning the enforcement of assessments and/or decisions made under the Act, time begins to run from the date the employer receives the Director’s decision. It was averred that the Respondent was allegedly served with the Director’s decision on 12th November 2020 and, consequently, the present Application is statute-barred. 15.Further, the Respondent denied liability under the Act and asserted that the claim was premised on forged and/or falsified treatment documents and an allegedly fraudulent assessment of the degree of injuries, which were subsequently used to procure the WIBA/DOSH 4 compensation report. III. Submissions 16.The Applicant’s counsel submitted globally that the Preliminary Objection dated 21st January 2026 was misconceived and had previously been determined by courts of concurrent jurisdiction. Counsel argued that the present proceedings concern the enforcement and adoption of a final award issued by the Director of Occupational Safety and Health Services (DOSH) under the Act, and not a claim founded on a contract of service or an employment dispute under the Employment Act. 17.It was contended that Section 90 of the Employment Act, which provides a three-year limitation period for employment claims, was inapplicable to enforcement proceedings under WIBA since the Act constitutes a self-contained statutory regime with no limitation period prescribed for the enforcement of an unchallenged DOSH award. 18.The Applicant further submitted that the Respondent had admitted receipt of the DOSH assessment but failed to file an objection, review or appeal within the sixty days provided under Section 51 of the Act, thereby rendering the award final and binding. Reliance was placed on several authorities, including Juma v Red Mamba Agencies Limited & another [2025] KEELRC 3568 (KLR), Bakari v Spanish Coach Express Limited & another [2025] KEELRC 2351 (KLR) and Naftali (suing as the Legal Administrator of the Estate of the late Monica Nafula Lucheli - deceased) v County Government of Kakamega (Misc. Appl. E001/2024), wherein courts held that the limitation period under Section 90(now section 89) of the Employment Act does not apply to enforcement of DOSH awards under WIBA. 19.Counsel argued that once the statutory objection period lapses without challenge, the DOSH award assumes the character of a judgment or decree enforceable under Section 4(4) of the Limitation of Actions Act, which provides a twelve-year limitation period for enforcement of judgments. It was therefore submitted that the present application, having been filed in 2025, was well within time. 20.Counsel further urged the Court to uphold the constitutional principles under Articles 41, 48 and 159(2)(d) of the Constitution by prioritizing substantive justice over technical objections. It was argued that allowing the Preliminary Objection would unjustly defeat the Applicant’s entitlement to compensation under WIBA and reward the Respondent’s non-compliance with statutory obligations. 21.Lastly, the Applicant contended that the Preliminary Objection failed the test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 as it did not raise a pure point of law and instead required factual inquiry into the nature and enforceability of the DOSH award. The Court was therefore urged to dismiss the Preliminary Objection with costs and proceed to adopt and enforce the DOSH award together with interest and costs. 22.On the other hand, the Respondent’s counsel submitted that the Preliminary Objection dated 21st January 2026 was founded on a pure point of law, namely that the Applicant’s claim seeking enforcement of the Director’s award dated 31st August 2020 was statute-barred pursuant to Section 90 of the Employment Act, 2007(Now Section 89 of the Employment Act). 23.Counsel argued that although the Act does not expressly provide an enforcement mechanism for awards issued by the Director, the prevailing practice has been to invoke Section 87 of the Employment Act for purposes of enforcement before the Employment and Labour Relations Court. It was therefore submitted that claims seeking enforcement of DOSH awards are consequently subject to the limitation period prescribed under Section 90 of the Employment Act, which requires employment-related claims to be instituted within three years from the date the cause of action arose. 24.Counsel further submitted that time began to run either from 31st August 2020, being the date of the Director’s assessment, or alternatively from 12th November 2020, when the Respondent was allegedly served with the DOSH/WIBA 4 form. The Respondent contended that the Applicant failed to explain the delay between the issuance and service of the award and the filing of the present application on 7th November 2025. 25.It was therefore the Respondent’s position that the Applicant ought to have instituted enforcement proceedings on or before 31st August 2023 or, at the latest, 12th November 2023. Since the present proceedings were filed in November 2025, the same were said to be hopelessly out of time and statute-barred. 26.In support of its submissions, the Respondent relied on the decisions in Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR) and Elijah Kisyanga Ndende v The Manager Zahkem International Construction Ltd [2022] eKLR, urging the Court to uphold the Preliminary Objection and dismiss the Applicant’s claim. IV. Issues For Determination 27.The factual background leading to this application has been set out by the parties and their respective counsel as per the summary in the preceding parts of this ruling. The gist of the application is that the applicant was awarded by DOSH, as alluded to above, and the respondent has neither settled the award nor made acceptable or reasonable proposals on the settlement of the same. It is also not in dispute that the respondent neither objected to the award nor appealed the same. The respondent’s only contention is that the award is statute-barred, having been filed for enforcement beyond the three years contemplated under Section 89 of the Employment Act. There is no objection to the receipt of the award. 28.Upon the court considering the evidence availed by way of affidavits and the arguments advanced in the submissions from both sides, the following issues commend themselves to the court for determination –a.Whether the application is statute-barredb.Whether the respondent is liable for the settlement of the DOSH award of Kshs794,230.61 plus interest (12% p.a. for 6 years) from the date of assessment in the sum of Kshs571,846.04, making a total of Kshs1,366,076.65.c.Who bears the costs of this application? V. Statute Barred 29.An objection to the limitation of actions to any claim goes to the jurisdiction of the court to entertain the said application. Without jurisdiction, a court has to down its tools, as affirmed by Nyarangi J. in Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd 1989 eKLR. 30.The award by DOSH was made on 31st August 2020. It is asserted that the respondent was informed of the award on 12th November 2020, a position that it has not denied, nor denied service. 31.The DOSH award is in the nature of a judgement, and this court has jurisdiction to either adopt the award without alteration or to hear an appeal raised pursuant to Section 51 of WIBA. the court does not determine the liability of the respondent in the first instance. The present application is not meant for the court to determine the liability of the respondent, in the first instance, which would make the claim a fresh claim. Being a judgement in mature, Section 4(4) of the Limitation of Actions Act provides that – ‘An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due’. Emphasis added. 32.The enforcement of the DOSH Award in the absence of any provisions for limitation of time on the Award, therefore, falls under the Limitation of Actions Act. Twelve years span from 22nd October 2019 until 22nd October 2031. The present application was made on 5th November 2025, within the statutory period of 12 years. The Preliminary objection is found to be of no merit and is hereby dismissed. VI. Adoption 33.Documents filed by the Applicant, and particularly the Notice by Employee of an Accident (DOSH Form), clearly show that the Applicant was employed by the Respondent and sustained a back injury on 20th September 2019. The respondent stated that the award was served upon it on 12th November 2020. The respondent has not denied that the applicant was its employee or denied whether an accident occurred. The respondent alleges that the medical assessments and award are premised on forged medical documents and thus the award is not payable to the applicant. 34.Having assessed the compensation payable to the applicant, the Director sent his decision (DOSH/WIBA/4) and demand for payment, dated 31st August 2020. The Respondent never objected to the award pursuant to Section 51 of the WIBA or adduced evidence of the forged medical report. Under Section 25 of WIBA, the employer could have requested the applicant to submit to a second medical assessment if it was not satisfied with the medical reports adduced or the award by DOSH. The old adage stands that he who alleges must prove that fact. The assessed sum of Kshs794,230.61 /= has since become payable to the applicant by the Respondent in the absence of any objection by the Respondent to the Director’s award.VII. Ordersi.The notice of motion by the Applicant dated 5th November 2025 is hereby allowed as hereunder –a.The award of Kshs794,230.61 /= made by the Director is hereby affirmed, and judgment entered therefor for the Applicant against the Respondent.b.The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.c.Costs of the application to the Applicant.d.A decree shall issue accordingly. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 4TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGE