Quote from Lawyer on June 9, 2025, 5:02 am

The Court of Appeal’s decision in Charles v Cheto [2025] KECA 784 (KLR) marks a pivotal moment in resolving longstanding uncertainties surrounding the enforcement of awards under the Work Injury Benefits Act, 2007 (WIBA) and the options available to employers facing such awards. This commentary addresses two critical questions: (1) how awards made by the Director of Occupational Safety and Health Services (DOSHS) are enforced under WIBA, and (2) what avenues, other than payment, are available to employers to challenge such awards. Drawing on the Court’s findings, this analysis provides clarity for practitioners, employers, and employees navigating workplace injury claims in Kenya.

Background and Context

In February 2019, Joash Shisia Cheto sustained injuries while pruning trees at the residence of Theopot Patrick Charles. Cheto reported the incident to the DOSHS in September 2019, leading to an assessment of KES 624,000 in compensation under WIBA. Charles, the employer, neither objected to nor appealed the Director’s award. When payment was not forthcoming, Cheto sought enforcement through the Employment and Labour Relations Court (ELRC). Charles contested the claim, asserting that Cheto was not his employee but rather worked for an independent contractor. The ELRC upheld and adopted the Director’s award, prompting Charles to appeal to the Court of Appeal, which dismissed his appeal on 9 May 2025.

The case highlights two persistent issues under WIBA: the absence of an explicit enforcement mechanism for the Director’s awards and the procedural options available to employers who dispute such awards. The Court of Appeal’s ruling provides authoritative guidance on these points, affirming the ELRC’s role and delineating strict procedural pathways for challenges.

Enforcement of Awards Under WIBA

The Lacuna in WIBA and the ELRC’s Jurisdiction

WIBA does not expressly outline a procedure for enforcing awards issued by the Director, creating a legislative gap that has frustrated stakeholders since the Act’s enactment in 2007. The Court of Appeal in Charles v Cheto addressed this by affirming that the ELRC possesses inherent jurisdiction to adopt and enforce such awards. This jurisdiction stems from Article 162(2)(a) of the Constitution of Kenya, which establishes the ELRC to adjudicate employment and labour relations disputes, and Section 12 of the Employment and Labour Relations Court Act, which grants the ELRC broad authority over such matters.

The Court noted that, in the absence of a statutory enforcement mechanism, judicial precedent has established that award holders may approach the ELRC to enforce Director’s awards, either through summary proceedings (miscellaneous causes) or ordinary causes focused solely on enforcement (Charles v Cheto, para 43). This aligns with prior decisions, such as Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR), which held that the ELRC’s mandate under Sections 86 and 89 of the Employment Act, 2007, extends to enforcing WIBA awards. Section 86 empowers the ELRC to resolve disputes arising from employment contracts or injuries, while Section 89 sets a three-year limitation period for such claims, ensuring timely recourse.

Practical Implications for Enforcement

The ruling clarifies that enforcement proceedings are not an opportunity to relitigate the merits of the Director’s award. The ELRC’s role is limited to confirming the award’s validity and adopting it as a court judgment for execution, provided no valid procedural challenges exist (Charles v Cheto, para 54). This underscores the importance of addressing substantive disputes (e.g., employment status or liability) at earlier stages, as discussed below. For employees, this decision ensures a clear pathway to realize compensation, reducing delays caused by employer inaction. For practitioners, it emphasizes the need to file enforcement claims promptly within the three-year limitation period under Section 89 of the Employment Act.

Options for Employers to Challenge WIBA Awards

Statutory Objection and Appeal Process

The Court of Appeal outlined a structured process under WIBA for employers to contest the Director’s awards, emphasizing strict adherence to statutory timelines. Under Section 51(1) of WIBA, an employer aggrieved by the Director’s decision must lodge an objection with the Director within 60 days of the decision. The objection must be in writing, in the prescribed form, and include a concise statement of the grounds and relief sought (Charles v Cheto, para 47). The Director is required to respond within 14 days, either upholding or varying the decision with reasons (Section 52(1)).

If dissatisfied with the Director’s response, the employer may appeal to the ELRC within 30 days (Section 52(2)). This appeal allows the ELRC to review the Director’s decision on its merits, including issues such as employment status or the quantum of compensation. The Court in Charles v Cheto emphasized that failure to utilize these avenues within the stipulated periods is tantamount to acceptance of the award, barring the employer from raising substantive objections during enforcement proceedings (Charles v Cheto, para 53).

Judicial Review for Procedural Irregularities

A significant contribution of Charles v Cheto is its guidance on remedies for employers who were unaware of the Director’s proceedings or missed the objection and appeal deadlines. The Court held that such employers may seek judicial review to quash the award, provided the application is made before the ELRC adopts the award (Charles v Cheto, para 53). Judicial review is appropriate for addressing procedural irregularities, such as lack of notice or violation of fair administrative action under Article 47 of the Constitution. To pursue this remedy, the employer must first seek a stay of the enforcement proceedings to preserve the status quo.

In the case, Charles argued that he was not notified of the Director’s proceedings and only learned of the award in March 2021, after the 60-day objection period had lapsed. The Court found this defense untenable, as it was raised late (during oral testimony in January 2022) and not pleaded in his defense. Moreover, Charles failed to pursue judicial review despite receiving the award via email in January 2021 and facing enforcement proceedings from March 2021 (Charles v Cheto, para 52). This underscores the Court’s insistence on proactive engagement with available remedies.

Limitations on Raising New Defenses

The Court of Appeal reinforced the principle that parties are bound by their pleadings, and new defenses cannot be introduced on appeal unless they were fully canvassed at trial (Charles v Cheto, para 32, citing Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR). Charles’s claim of a fair hearing violation was dismissed as an afterthought, as it was neither pleaded nor substantially ventilated before the ELRC (Charles v Cheto, para 39). This serves as a caution to employers to raise all procedural and substantive objections early, either through the statutory objection process, appeal, or judicial review, rather than during enforcement or appellate stages.

Practical Lessons for Employers and Practitioners

1. Adhere to Statutory Deadlines: Employers must monitor workplace injury reports and respond promptly to Director’s awards. Missing the 60-day objection or 30-day appeal windows renders the award final and enforceable.

2. Engage Proactively: Inaction does not shield employers from liability. Even if unaware of the Director’s proceedings, employers must act swiftly upon notification (e.g., via demand letters) by seeking judicial review or other remedies.

3. Pursue Judicial Review for Procedural Issues: Where notice was not served or procedural fairness was compromised, employers should file a judicial review motion before enforcement, accompanied by a stay application to halt adoption proceedings.

4. Limit Defenses to Pleaded Issues: Employers must articulate all defenses in their pleadings before the ELRC. Raising new issues, such as fair hearing violations, on appeal is unlikely to succeed unless they were canvassed at trial.

5. Understand the ELRC’s Role: During enforcement, the ELRC will not revisit factual disputes or employment status. Such matters must be resolved through objections or appeals, not at the adoption stage.

Broader Implications and Unresolved Questions

The Charles v Cheto decision strengthens the enforcement framework for WIBA awards, ensuring that injured employees can access compensation without undue delay. By affirming the ELRC’s jurisdiction and clarifying judicial review as a remedy for procedural lapses, the Court has addressed key gaps in WIBA. However, the ruling also highlights the need for legislative reform to codify enforcement procedures and address scenarios where parties are unaware of proceedings until after statutory deadlines lapse.