https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2311

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **MISCELLANEOUS APPLICATION NO. E046 OF 2026** **ZADOCK OTIENO OKUMU…………..……………………….APPLICANT** **VERSUS** **KENYA KAZI SERVICES LIMITED……………………......RESPONDENT** **RULING** 1. The Applicant filed the application dated 29th January 2026 seeking orders that:- 2. The court adopts the award by the Director of Occupational Safety and Health Services of Ksh. 52,664.28 in his favour as a judgment of the court. 3. The court awards him interest on the aforesaid amount at the rate of 14% per annum from 23rd April 2021. 4. The court awards him costs of the application. 5. The application is supported by the grounds on the face thereof and the Applicant’s affidavit. The Applicant avers that he sustained injuries on 7th January 2021 whilst executing his duties as security officer on behalf of Respondent. He contends that he was treated for the injuries where-after a medical report was prepared for him. 6. The Applicant contends that the Director of Occupational Safety and Health Services (the Director) subsequently assessed his injuries for purposes of ascertaining the quantum of compensation that he was entitled to. He contends that following this assessment, the Director awarded him 1% permanent incapacity. He further avers that on 23rd April 2021, the Director filled DOSH/WIBA 4 form for him in which he was awarded Ksh. 52,664.28 as compensation. 7. The Applicant asserts that the despite the Respondent being made aware of the award by the Director, it (the Respondent) has refused to make good the compensation. He contends that by virtue of section 26 of *the Work Injury Benefits Act*, the Respondent was obligated to settle the claim within 90 days of the Director’s demand. Hence the application. 8. The application was initially served on the Respondent through email but the court rejected this mode of service as it was not possible to determine whether the email address which was used to effect service belongs to the Respondent. As such, the court ordered for physical service. 9. On the second service, the affidavit of service shows that the motion was delivered to a company called Garda World Services (Kenya) Limited. The process server avers that the officer who received the documents informed him that the Respondent had changed its name to Garda World Services (Kenya) Ltd. 10. Although the process server makes this assertions, it is not possible to verify whether indeed there was a mere change of name by the Respondent or whether there was a transfer of business from one entity to the other. The legal ramifications of the transition will depend on the exact nature of the transaction which resulted in the alleged change of names. Having regard to the foregoing, it is difficult for the court to conclude that the Respondent was properly served with the present application. 11. That said, the court notes that whilst the award by the Director was rendered on 26th April 2021, the instant application seeking to adopt it (the award) as a judgment of the court was filed on 29th January 2026 more than four (4) years down the line. This raises the question whether the request to adopt the award was filed within the statutory timelines which the law provides and whether the court has jurisdiction to entertain the matter. 12. Section 89 of *the Employment Act* provides as follows:- *‘’Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, 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.’’* 1. This provision stipulates that suits to enforce rights arising from a contract of service should be filed within three years of a cause of action arising or within one year of cessation of an injury in the case of a continuing injury claim. As such, any action which is instituted outside these timelines is statute barred. 2. The claim by the Applicant is anchored on the employment relation he had with the Respondent. Therefore, a suit to enforce the award ought to have been filed within three years from the date of refusal by the Respondent to settle it (the award). 3. According to the evidence on record, the Director notified the Respondent of the award around 26th April 2021. By virtue of section 26(4) of *the Work Injury Benefits Act*, the Respondent was required to pay the award within ninety (90) days of the Director’s notice, that is to say by 26th July 2021. However, it (the Respondent) failed to do so. Therefore, the cause of action in respect of the award arose after the lapse of the aforesaid ninety (90) days (26th July 2021). 4. The Applicant should have filed the instant application within three years from the date of failure by the Respondent to settle the award, that is to say, 26th July 2021. This means that the application should have been filed by 26th July 2024. However, he did not do so until 29th January 2026. 5. Limitation of actions ousts the mandate of a court to entertain a claim. It is intertwined with and affects the court’s jurisdiction to entertain a matter. 6. Speaking to this, the court in the case of ***Bosire Ogero v Royal Media Services [2015] KEHC 4728 (KLR)*** stated as follows:- *‘’The law of limitation of actions is intended to bar the plaintiffs from instituting claims that are stale and aimed at protecting defendants against unreasonable delay in the bringing of suits against them. The issue of limitation goes to the jurisdiction of court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same. And even if the issue of limitation is not raised by a party to the proceedings, since it is a jurisdictional issue, the court cannot entertain a suit which it has no jurisdiction over.’’* 1. Jurisdiction is a central issue in dispute resolution. The court cannot assume the mandate to preside over a matter if it lacks the requisite jurisdiction to do so. It should down its tools the moment it comes to the realization that it is bereft of jurisdiction. 2. Speaking to the matter in the case of ***Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR),*** the court observed as follows:- *‘’* ……. *a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’’* 1. The issue of jurisdiction can be taken up by the court on its own motion. This fact was affirmed by the court in the case of ***Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd*** (supra). 2. Further, it is now settled that the court cannot assume jurisdiction over a matter merely because the parties have not flagged the issue. Acquiescence to the issue does not operate to confer jurisdiction where none exists. Speaking to this, the learned Judge in the case of ***Backlite Limited v Plenser Limited (Civil Appeal E654 of 2024) [2025] KEHC 7960 (KLR) (Civ) (5 June 2025) (Judgment)*** stated as follows:- *‘’Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties.’’* 1. That the court has no jurisdiction to adopt a Director’s award outside three years has been affirmed by the court in various decisions. This, for instance, was the position that was expressed by the court in the cases of ***Ng’ang’a v County Government of Nakuru [2023] KEELRC 789 (KLR)***, ***Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR)*** and ***Mutunga v African Express Airways Limited [2025] KEELRC 951 (KLR).*** 2. Having regard to the foregoing, it is apparent that the Applicant’s claim, albeit unopposed, is time barred. As such, the court has no jurisdiction to entertain it. 3. That being the case, the court finds that the application is bad in law. 4. As such, it is dismissed with no order as to costs***.*** **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Applicant …………….for the Respondent **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**