Katana v Transpares(K)Limited (Employment and Labour Relations Miscellaneous E111 of 2024) [2025] KEELRC 2472 (KLR) (18 September 2025) (Ruling)
Neutral citation:
[2025] KEELRC 2472 (KLR)
Republic of Kenya
Employment and Labour Relations Miscellaneous E111 of 2024
K Ocharo, J
September 18, 2025
Between
Joseph Mrichwa Katana
Applicant
and
Transpares(K)Limited
Respondent
Ruling
1.By a Notice of Motion Application dated 1st November 2024, the Applicant seeks the following orders:I.That this matter be certified urgent and service be dispensed with, and the same be heard issue ex parte in the first instance.II.That the Court be pleased to adopt the assessment of the Director, Occupational Health and Safety, as an order of the Court as contained in WIBA 4 form dated 1st August, 2024.III.That a decree be issued in accordance with the assessment of the Director of Occupational Health and Safety for the sum of KSHs. 1,765,933.54.IV.That the costs of the application, amounting to KShs. Two hundred thousand be paid by the Respondent.
2.The application is based on the grounds outlined on its face, supported by an affidavit sworn by the Applicant on 1st November 2024 and a further affidavit on 17th December 2024.
3.The Respondent opposes the application via a Replying Affidavit sworn by Maureen Okoth, its legal officer, on 1st November 2024.
The Application
4.The Applicant states that on 27th March, 2021, while working for the Respondent, he was involved in an accident, and as a result sustained severe injury.
5.He was treated at different hospitals and later examined by the Respondent’s doctors, who prepared a medical report detailing the injuries he sustained.
6.He reported the accident to the Director of Occupational Safety and Health Services [the Director] and, as a result, the relevant form [Dosh/Wiba 4] was filled. Subsequently, on 12th July 2024, the Director assessed compensation for the injuries he had suffered at KShs. 935,713.13. He objected to the assessment, holding that, considering the severity of his injuries, the amount was insufficient.
7.Following the objection, the Director reviewed the award upwards to Kshs.1,765,993.53. Although the Respondent was informed of the assessment and the award by the Director, it neglected, refused, and/or ignored settling the award.
8.By refusing to settle the awarded sum, the Respondent has committed a criminal offence under Section 26[6] of the Work Injury Benefits Act. Further, the law obligates the Insurer of the Respondent to settle the awarded sum.
The Response
9.The Respondent states that the Applicant suffered a workplace accident on 27th March, 2021, and as a result, he sustained injuries. Subsequently, on 12th July, 2024, the Director assessed compensation payable to him for the injuries suffered at KShs. 935, 731.13. His permanent incapacity had been assessed at 15%.
10.The Applicant objected to the assessment via their letter dated 25th July 2024.
11.The Director proceeded to review the award on 1st August 2024 unilaterally. The initial award was reviewed to Kshs.1,765,993.53. The review was unlawful, procedural and unreasonable. The Director didn’t convene a panel of doctors to review the Applicant’s injuries, the Respondent wasn’t served with the form containing the re-assessed amount, and the Applicant was illegally awarded future medical expenses and costs of medication.
12.The Respondent asserts that allowing the instant application will be prejudicial against it as it will suffer substantial loss out of an illegal process. The greater interest of justice demands that the Applicant’s application be dismissed.
The Rejoinder
13.The Applicant stated that following the initial assessment, which he was aggrieved with, he later visited the clinic of Dr. Wambua Kiema, a qualified doctor approved by the Director, who examined him and prepared a medical report for him. The Doctor assessed his permanent at 35%, indicating that he had suffered three different fractures.
14.It is based on the report that he objected to the initial award. The objection was served on the Labour Officer and the Respondent in accordance with the provisions of Section 51 of the Work Injury Benefits Act. The medical report was attached to the objection.
15.The Director correctly reviewed the initial award based on the Doctor’s report. In accordance with Section 51 of the Act, the Director issued a written answer via WIBA form 4.
16.There is not a legal requirement, and the Respondent has not shown any, that the Director ought to have convened a panel of doctors to review his injuries.
The Applicant’s Submissions
17.The Applicant submitted that under Section 26[4] of the Work Injury Benefits Act, an employer or their Insurer against whom a compensation claim has been made shall settle the same within ninety days of the lodging of the claim. Despite the demand made, the Respondent failed to settle the claim.
18.It shall be for the interest of justice that his application herein be allowed, to enable him to initiate execution proceedings so that he may realise the fruits of the Director’s award.
The Respondent’s Submissions
19.The Respondent submitted that, contrary to the Applicant’s position, the medical report by Dr Wambua Kiema, which assessed the Applicant’s injuries at 35% permanent disability, was dated 10th August 2023 and not 24th August 2024, yet it formed the basis for the reassessment of the initial award by the Director. It is common that a medical report, the basis of an objection, logically cannot predate the award objected to.
20.Contrary to Section 52 of the Act, the Director did not issue any written answer to the Applicant’s objection, and the affected parties, particularly the Respondent, were not served with the same.
21.The process reviewing the award was not procedural as the Director didn’t re-evaluate the evidence that had been initially submitted. There was no inquiry or investigation done, and the Applicant didn’t submit himself for examination by a medical practitioner designated or approved by the Director.
Analysis and Determination
22.I have carefully considered the application, the grounds upon which it is premised, the Applicant’s Supporting and Further affidavits, the Replying Affidavit, and submissions by the parties, and a sole issue emerges for determination-whether the Applicant’s application herein is merited.
23.Section 51 of the Work Injury Benefits Act provides for appeals against a decision by the Director. The Section provides;
24.Section 52 of the Act provides for how the Director shall handle the objection once lodged by the aggrieved person in accordance with section 51 of the Act, thus;
25.It appears that an aggrieved person who wishes to have a decision of the Director set aside by this court shall approach the Court in the manner outlined in section 51 of the Act. However, it is essential to note that since the Director performs duties under the Act that are administrative in nature, decisions or actions that cause grievance can also be challenged through judicial review proceedings. See also Charles vs Cheto [2025] KECA 784[KLR].
26.This Court observes the Respondent’s complaints that the Director’s decision to review the initial award upwards was irrational, lacking procedural adherence, prejudicial, and unlawful. In my considered view, such complaints would only be examined and a decision made by this Court if the appropriate legal procedures for approaching the Court have been followed. Complaints presented through a replying affidavit cannot cause this Court to interfere with the Director's decision. Therefore, such complaints will remain just that—complaints without further effect.
27.Undeniably, the Respondent didn’t challenge the Director’s decision in the manner prescribed under Section 51 of the Act and subsequently under Section 52 [if there were to be a need], or initiate any proceedings for judicial review orders against the decision. As such, this Court will not have a legal basis to decline the Applicant’s application.
28.Based on the above premises, the Applicant’s current application is granted only to the extent that the Director’s award is adopted as a judgment of this Court, and a decree will be issued for the sum of Kshs. 1,765,993.53.
29.This Court notes that in the application, the Applicant sought costs of Kshs. 200,000. I have entirely failed to identify any justification provided by the Applicant for this substantial sum. I hereby direct that the costs of this application, which I award in favour of the Applicant, be agreed upon by the parties; in default, the same shall be taxed by the Taxing Officer of this Court.
30.Orders accordingly.
READ, SIGNED AND DELIVERED THIS 18TH DAY OF SEPTEMBER 2025.SIGNED BY:HON. MR. JUSTICE OCHARO KEBIRA