Abubakar v Modern Coast Builders and Contractors Ltd (Miscellaneous Application 15 of 2022)  KEELRC 13245 (KLR) (17 November 2022) (Ruling)
Neutral citation:  KEELRC 13245 (KLR)
Republic of Kenya
Miscellaneous Application 15 of 2022
AM Katiku, J
November 17, 2022
Firdaus Athamn Abubakar
Modern Coast Builders and Contractors Ltd
1.The application before me is the applicant’s Notice of Motion dated March 17, 2022. The applicant seeks the following orders:-a.that the court be pleased to adopt as a judgment of this court the award of the Director of Occupational Safety and Health Services made on November 11, 2019.b.that judgment be entered for the Applicant against the respondent for the sum of Ksh. 9,349,344 awarded, with interest at 14% per annum as from November 11, 2019.c.costs of the application be assessed and awarded by the court.
2.the application is based on the supporting affidavit of the Applicant, Firdaus Athman Abubakar, sworn on March 17, 2022. The Applicant, who is a personal representative of the estate of Mohidin Abdulmahid Mohidin (deceased) deponed:-a.that the deceased was employed by the respondent from 2006 to October 25, 2019 as a Transport Supervisor in the Department of Fuel Management, Logistics and IT earning ksh. 97,389 per month.b.that on October 25, 2019 the deceased, while in the course of employment, sustained a fatal injury at Kokotoni Area and the matter was reported to the respondent who thereupon subjected themselves to Work Injury Benefits Act process as per the law to determine the quantum payable on the deceased.c.that the Director of Occupational Safety and Health Services issued DOSH/Form 1 which the Respondent filled, detailing the date of employment, salary and cause of death.d.that on November 11, 2019, the Director assessed the compensation payable at ksh. 9,349,344, the deceased having suffered 100% incapacity, which amount has attracted interest of ksh. 3,054,463 as at 28th February 2022, and continues to attract interest.e.that the respondent did not object or appeal the decision within 90 days as required by the law but proceeded to engage its insurers, despite the fact that there is no relationship between the deceased and the Respondent’s Insurance.f.that the Respondent has not paid a single cent in compensation to the deceased’s estate and as per Director’s assessment.
3.The application is opposed by the respondent vide a replying affidavit of Christine Mfutu sworn on May 19, 2022 and filed herein. It is deponed in the said replying affidavit:-a.that the deceased was employed in the Administration department majoring in Fuel Management Logistics and IT, and was stationed in the respondent’s office in Mombasa.b.that the deceased’s death was occasioned by injuries resulting from an accident not in the course of the deceased’s employment.c.that the accident did not involve any company vehicle and as such no liability would be occasioned on the Respondent as envisaged under the Work Injury Benefits Act.d.that the respondent did not prepare and submit DOSH Form 1 as alleged by the applicant, and that DOSH FORM 1 indicated that the accident occurred while the deceased was travelling to work and not while at work.e.that the applicant made a fraudulent representation to the Director of Occupational Safety and Health services by presenting DOSH FORM 1 which was not filled by the respondent.f.that the respondent denies liability as the injury did not occur during work.g.that the Respondent disputes the Court’s jurisdiction as the injury did not occur in the normal course of employment.
4.It is evident from the material placed before me by both parties herein, that the respondent did not object to the Director’s assessment of compensation payable to the applicant regarding the deceased’s death. Section 51 of the Work Injury Benefits Act provides as follows:-
5.The Respondent has not demonstrated that it objected to the Director’s decision on assessment of compensation payable.
6.In interrogating the issues of whether this Court has jurisdiction to entertain and to determine the issue of liability between parties in work injury claims and whether the court can enforce the Director’s decision on assessment of compensation payabale to employees involved in occupational accidents or suffering occupational diseases, and particularly where such decisions have not been objected to pursuant to section 51(1) of WIBA, the provisions of sections 16 and 23 of the Work Injury Benefits Act must be considered. Section 16 of the Act provides as follows:-
7.On the other hand, section 23 of the said Act provides as follows:-
8.I have recently stated in the case of Millicent Akinyi Odhiambo & another -vs- Quale Holdings Limited t/a Guyana Guest House  eKLR that it is evidently clear from the foregoing two Sections of the WIBA that determination of liability and assessment of compensation payable thereon in work injury claims is the preserve of the Director of Occupational Safety and Health Services, and that this Court does not have primary and/or original jurisdiction over those issues.
9.Section 23 of the Act specifically provides that the Director shall make such enquiries as are necessary to decide upon any claim or liability in accordance with the Act. Determination of liability and assessment of compensation payable in work injury claims is strictly within the statutory domain of the Director. The statute expressly takes away this court’s jurisdiction to determine such issues.
10.The respondent’s purported denial of liability in the proceedings herein is coming too late in the day, and is presented in the wrong forum. It ought to have been presented to the Director during the enquiries stage under section 23 of the WIBA, or by way of an objection under section 51(1) of WIBA.
11.On whether this court can enforce the Director’s decision on assessment of compensation payable, I recently stated as follows in the case of Amir Swaleh Omar -vs- Mackenzie Maritime [E.A.] Limited  eKLR:
12.The foregoing position applies to the present case. I hold that this Court has jurisdiction regarding enforcement of the Director’s decision, but the court cannot interrogate or determine any issues of liability between the employer and the employee which either of them may attempt to place before this court for determination. Such matters ought to have been raised with the Director in accordance with the Work Injury Benefits Act as already stated in this Ruling.
13.I allow the Notice of Motion dated March 17, 2022 in the following terms:-a.the award of the Director of Occupational Safety and Health Services made on November 11, 2019 is hereby adopted by this court and accordingly, judgment is hereby entered for the claimant against the Respondent for ksh. 9,349,344, being the amount of compensation assessed by the Director of Occupational Safety and Health Services.b.the applicant is also awarded costs of these proceedings and interest on the decreed sum at court rates.c.interest shall be calculated from the date of this Ruling until payment in full.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MOMBASA THIS17TH DAY OF NOVEMBER 2022AGNES KITIKU NZEIJUDGEAppearance:Mr. Nyongesa for ApplicantN/A for Respondent