1.The background of this appeal is that on 14th September, 2017, the interested party while on duty as a grader/bunchier at the Appellant’s flower farm, was involved in an industrial accident, being that a drop of solution known as white fly poured into his eyes while he was handling flowers grading.
2.On 17th September, 2017 the Interested party requested for permission to go for an eye checkup as the eye became more irritated which permission was granted and he attended at Naivasha Optics for an eye checkup which the doctor diagnosed him with chemical conjunctivitis and was treated and he resumed work. It is stated that the eye did not heal as expected and the interested party was referred to Kikuyu Hospital for a specialized eye checkup. He was attended to on the 9th October, 2017 and several visits and checkups ensured therefrom and the eye infection became worse till the interested party lost his vision on the right eye and partial loss of vision on the left eye.
3.Thereafter the Appellant filled a ML/DOSH/WIBA Form 1 on the 20th March, 2018 and on 12th May, 2018 a doctor assessed his permanent incapacity at 30% indicating the injuries sustained as loss of vision in the right eye and partial loss of vision in the left eye. The doctor further indicated that a final examination shall be carried out Three (3) Months later, However, the Respondent proceeded and assessed damages payable to the interested party on the 25th May, 2018 of Kshs. 512,284.00 and immediately issued DOSH/WIBA 3 form notifying the Appellant herein to pay the said money.
4.The Appellant objected to the award on 2nd July, 2018 which did not elicit any response prompting them to file another objection reminder on 18th October, 2018 protesting the award. The Respondent by the letter dated 6th November, 2018 directed that the interested party to be subjected to a 2nd medical examination by a doctor to be decided by the director DOSHS before final award is confirmed. The appellant herein protested the assessment of costs and the fact that the interested party was to be subjected to another doctor besides the earlier doctor and therefore filed this Appeal.
5.The Appellant being dissatisfied with the respondent’s decision in the letter dated 6th November, 2018, filed a Memorandum of Appeal on 6th December, 2018 raising the following grounds of Appeal:The appellant prays for Orders that;-
6.The appeal is opposed by the Respondent who filed a response to the Appeal on the 14th February, 2019 on the basis that the Appellant herein notified it of an occurrence of an industrial accident involving the interested party therefore affirming that indeed an accident occurred.
7.It is stated that the Appellant through its Human Resource personnel, one Susan Kihara filled form ML/DOSH/FORM 1 dated 20th March, 2018 and further send the said form by their letter of 30th October, 2017 to be filled by a medical doctor of their choice, One Doctor Amunga. It is contended that the two documents is an admission on the part of the Appellant that an accident indeed occurred.
8.The Respondent stated that when it received a protest of the assessed damages payable to the interested party, It provided a way forward by directing that the interested party be subjected to a further examination by a panel of doctors to be chosen by it, which in response the Appellant disagreed on the basis that the costs of the doctor who were to examine the interested party was to be borne by the Appellant when the law mandates it to constitute such panel of doctors for re-examination.
9.The Respondent states that it did not contravene any section of the law by not ordering any inquiry into the alleged accident owing to the demand by the Appellant.
10.The Respondent finally stated that if indeed no accident occurred as per the Appellant appeal then the Appellant ought to be convicted under section 112 of the Occupational Safety and Health Act for falsely notifying the Respondent of an accident.
11.This Appeal was disposed of by way of written submission with the Appellant filing on the 24th June, 2021 while the Respondent and the interested party did not file any submissions.
12.It was submitted for the Appellant that the director of Occupational safety and health services does not have any powers to direct which party is to bear costs of assessment. He argued that section 53 of the Work Injury and Benefits Act gives the powers of the director and to order payment of costs payable is not one contemplated in the said section.
13.It was submitted that under section 30 (3) of Work Injury and Benefits Act, the assessment of compensation was to be made by a director following an assessment of a medical doctor. He therefore contends that the doctor who had examined the interested party on 12th May, 2018 directed that the final assessment be made 3 months later to affirm the progress before final award can be made. He argued therefore that the assessment by the director on the 25th May, 2018 was done prematurely.
14.On whether the director is mandated under the law to carry out investigations of the alleged accident, it was submitted that under section 22 of Work Injury and Benefits Act, the employer is mandated to report any alleged accident while the Director is tasked under section 23 of the Act to carry out inquiries of the alleged accident to ascertain liability of each party, in addition that section 53 (2)(d) mandated the director to carry out investigation of any alleged accident once it received a report of an accident. It was therefore argued that the Respondent misdirected itself in failing to carry out any inquiries and merely relying on the report of the accident made by the Appellant. The Appellant reinforced its argument by citing the Supreme Court decision of Samuel Kamau Macharia and another –v- Kenya Commercial bank Limited 72 others  eklr where the Court held that where there is a clear procedure prescribed under the law, that procedure should be strictly followed.
16.On whether the Respondent erred in failing to give reason for the objection, the Appellant submitted that section 51 of Work Injury and Benefits Act provides for an avenue to object to the decision of the director while section 52 of the said Act mandated the director to respond within 14 days of receipt of the objection and further give reasons for varying or upholding the objected decision.
17.Accordingly, it was submitted that the director failed to follows the set out timelines of responding within 14 days and instead responded after 4 months and upheld its decision but still failed to give reasons for its decision.
18.The Appellant in conclusion submitted that their Appeal is merited and urged this Court to allow the same as prayed.
19.I have examined the averments and submissions of the parties herein. This being an appeal in the 1st instance, this court has a duty to re-evaluate the evidence of the parties before reaching any determination.
20.From the record herein, on 30/10/2017, the Respondent Appellant herein wrote to a Dr. Amunga and asked him to attend to Ezekiel Walwanda who had been splashed with a chemical on his eye on 20/3/2018, the appellants filed MN/DOSH/FORM 1, notifying the respondent herein of an accident involving the interested party.
21.This form was also filed by a medical officer Dr. Munga on 12/5/2018 indicating that the interested party had conjunctivitis on his right eye and lost sight therein and also had partial loss of eyesight in the left eye at 6/24.
22.The report of the doctor further recommended a further assessment after 3 months.
23.This matter was entered in the Accident Register No. WIBA/NSA/7360 on 28/3/2018.
24.On 25/5/2018, the respondent herein assessed compensation payable to the Interested party at 512,284/=.
25.The amount was arrived at by calculating 30% durability against his 96 months total earning = 13,720 x 96 x 30/100 which came to 395,136/=
26.This amount was added to the temporary incapacity of 117,148/= calculated at 13,720 x 222 days = 117,148/=
27.The total came to 512,284/=. This is contained in DOSH/WIBA 4 produced by the appellant in the record of appeal herein.
28.This assessment was notified to the appellant by the respondent vide its DOSH/WIBA 3 & DOSH/WIBA 4.
29.The appellants wrote an objection to this award vide their letter of 18/10/2018. They indicated that they had filed an objection regarding the award with the respondent and he had not responded within 14 days as expected and so required a meeting with the respondent in order to make an inquiry and investigate the alleged accident.
30.They also complained that the award was premature noting that in the medical report, the doctor had indicated that the interested party was to be examined further after 3 months from May 2018 to assess the level of permanent disability.
31.Though the appellant avers that they had filed an objection the objection referred to is not annexed to the documents filed in court.
32.On 6/11/2018, the direction of WIBA wrote to the appellants advocates indicating as follows;
33.Vide a letter dated 7/11/2018 the counsels to the appellants replied to the letter of 6/11/2018 and decided to disagree with the decision made by the respondent and sought for reason for the decision in order to pursue the matter in court.
34.I have analysed the above chronology of events in order to determine what the correct procedure is that should be followed by the respondent in computing compensation payable following a workplace injury and whether the respondent adhered to the said process.
35.The Work Injury Benefits Act 2007 makes provision of how an accident or injury at work should be handled. Section 21 of WIBA provides as follows;-
36.Section 22 of WIBA on the other hand stipulates as follows;-
37.Once an accident or injury is reported for the direction, the Director is expected to make an inqury into the injury or accident. In addition, the Director may also conduct investigation into the accident or injury.
38.Since the Director is expected to conduct an inqury and/or investigation, it is envisaged that proper particulars including documents shall be provided concerning the injury or accident.
39.The employer is expected to submit a claim to the director within 7 days upon receiving the claim, medical report on other documents on information concerning the claim.
40.Since the director has to investigate the claim, it is also provided that the employee would be required to submit himself or herself for medical examination by the medical practitioner designated by the Director or the employee with the approval of the director. The employee is also entitled at his own expense to have a medical practitioner of his choice present at an examination by a designated medical practitioner.
41.From the evidence submitted before me, the employee the Interested Party herein, reported the injury and the employer picked it up and made a claim to the Director as per the law.
42.It is clear also clear that the Director proceeded to make his inqury/investigation on the injury sustained by the Interested Party.
43.The Interested Party was examined by a doctor prescribed by the Director who made their recommendation. The appellant was however dissatisfied with the findings and decided to object.
44.The objection is not annexed to these proceedings though.
45.It is also apparent that there was some complain about the findings and the Director directed that the Interested Party undergoes another assessment by another doctor to be mutually agreed between the appellants and the Director. The Director also indicated that the final award of compensation was to be computed after the final assessment. The appellant was requested to meet the cost of the final assessment.
46.The appellants declined to accede to this option and decided to file the appeal.
47.My view is that the appellants had an option to have a further assessment of the Interested Party by another doctor of their choice. They had already reported this accident and thus agreed in principal that the Interested Party worked for them.
48.It was illogical for the appellant to ask for further inquiries and at the same time demand for reason for the decision of the Director which decision emanated from the findings of assessment of the doctor.
49.A new doctor of the appellant’s choice would have helped to alley their fears which the appellant decided not to follow.
50.The appellants have appealed to this court concerning the award of the Director on the ground that the director didn’t conduct any inquiry on the injury and also the fact that a final assessment was made before 3 months as directed by Dr. Muiga. The appellants also felt aggrieved being asked to bear costs of the final assessment.
51.First, the law is clear as to how inquiries/investigations are to be done. The Director receives the documents from employer and employee and then proceeds to investigate the matter. The employee is sent for medical examination or assessment and then a decision is made as guided by the law.
52.There is no indication how such investigations were ever done. It is also true that Dr. Munga had directed a final decision be made after 3 months.
53.Indeed a decision was made by the Director before 3 months elapsed.
54.That not-withstanding, the Director offered a solution of a further assessment by another doctor chosen by him and the appellants. The appellants refused to take the option which would have enabled them assess the finding through a doctor of their choice.
55.The appellants cannot therefore complain about this having refused to take the option of another assessment of the Interested Party through a doctor of their choice.
56.As to complaint that they were asked to bear costs of the new doctor, I believe that is the law because it was for their benefit. Indeed even the law envisages that if an employee wants to be assessed by a doctor of their choice, they bear the costs.
57.In my view the appellants have not demonstrated how the Director erred in the assessment of the Interested Party. The Director followed the law and process stated under WIBA. The appellants refused to participate in a further assessment and rushed to court on appeal.
58.The appellants have not established that the director committed an error in the way the Interested party was assessed and even if there was an error, there was a mechanism for correction which the appellants refused to pursue.
59.I therefore find that the appeal has no merit. I find no proper reason to disturb the findings and decision of the Director.
60.I therefore confirm the decision of the Director and dismiss this appeal accordingly with costs to the respondents and Interested Party.
DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF OCTOBER, 2021.HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:Olaly Cheche for Interested Party – presentWanjeri holding brief Weche for Respondent – presentOduor holding brief Wekhomba for Appellant – presentCourt Assistant - Fred