Introduction: Ignore WIBA awards at your own risk!
In a pivotal judgment, the Court of Appeal has decisively addressed longstanding ambiguities surrounding the enforcement of awards under the Work Injury Benefits Act (WIBA). For years, WIBA compensation award-holders and reluctant employers have operated in murky waters where uncertainty reigned supreme. In a paradigm shift, the Court has pierced the haze and conclusively addressed what has for long vexed both legal practitioners and litigants. This judgment does not merely interpret procedure; it delivers clarity, finality, and enforceable direction in an area where the law has long been plagued by procedural uncertainty and tactical litigation.
Factual Background
- Injury & Award: Mr Joash Shisia Cheto, injured in the course of his employment, secured a WIBA award of KES 624,000 from the Director of Occupational Safety and Health Services.
- Employer’s Silence: Theopot Patrick Charles (Employer) neither objected nor appealed the award within the statutory window and later claimed that he neither participated in the award process nor had notice of the award within time to object and/or appeal it.
- Enforcement Battle: Cheto applied to the Employment and Labour Relations Court (ELRC) for adoption of the award and execution; the employer objected and attempted to challenge the award. The arguments were dismissed by the ELRC, and now definitively by the Court of Appeal.
Core Holdings
Enforcement of the award lies with the Employment and Labour Relations Court (ELRC)
The Court affirmed that the ELRC Court is the proper forum to entertain enforcement proceedings of the Director’s award. This conclusion is rooted courtesy of the following provisions-
- Article 162(2)(a) of the Constitution;
- Section 12 of the ELRC Act; and
- Section 86 of the Employment Act.
Enforcement Mechanism of WIBA awards
The Court, while acknowledging the lacuna in law to provide for an enforcement mechanism of the WIBA awards, provided a cogent and workable framework as follows-
- Enforcement to be initiated through miscellaneous or ordinary causes in the ELRC. The same to be strictly confined to matters of enforcement.
- The ELRC’s role is strictly limited to adoption; it cannot entertain factual or merit-based challenges to the Director’s award.
- In the absence of any valid objection to the award, adoption is a matter of course.
- Once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.
Judicial Review Is the Sole Post-Limitation Remedy
Where the statutory window for objecting or appealing the Director’s award has lapsed, the Court in consonance with the ELRC’s findings held that the only remedy available to an aggrieved party is judicial review.
- The Judicial Review should seek quashing of the award.
- The Judicial Review must be pursued before adoption proceedings are concluded. To achieve this, the court advised that the Employer seeks stay of enforcement proceedings pending the determination of the filed Judicial Review.
- The Court emphasised that attempts to seek leave of the ELRC to file objection proceedings out of time and to stay adoption proceedings pending the intended hearing of the objection are in vain. This is informed by the ELRC’S jurisdiction which, in such instances, only arises on an appeal against the Director’s written reply to an objection that had been lodged by the employer.
Legal Implications
This decision affirms a structured and constitutionally sound pathway for enforcement of WIBA awards, bringing to rest confusion on the following key points:
Finality is Paramount
Unchallenged WIBA awards carry the full weight of the law. Parties cannot spring objections at the enforcement stage.
Procedural Precision
Compliance with WIBA’s tight objection and appeal deadlines is non-negotiable. Employers must monitor award notifications and act without delay.
Guarding Against Tactical Delays
The judgment sternly rebukes any strategy designed to delay enforcement: “no second bite at the cherry” now rings truer than ever. Moreover, the judgment reinforces the legislative intention behind WIBA being; to provide expeditious compensation to injured workers, free from prolonged litigation.
Practical Implications
| For Employers | For Employees |
|---|---|
| Must monitor WIBA proceedings closely and act within statutory timeframes. | May confidently seek ELRC enforcement where awards remain unchallenged. |
| Cannot resist enforcement on merits once adoption is underway. | Need not relitigate claims. Adoption suffices for execution. |
| Judicial review must be pursued promptly and before enforcement takes hold. | Enforcement applications can proceed even in summary form where uncontested. |
Conclusion
Charles v Cheto [2025] KECA 784 is more than a procedural clarification. It is a jurisprudential anchor. It codifies the enforcement process for WIBA awards and closes the door to tactical litigation strategies that frustrate compensation.
This alert serves the purpose of general guidance and is not intended to constitute specific legal advice. For legal advice concerning this alert or assistance on WIBA-related litigation, enforcement protocols, or judicial review strategies, compliance with the Directive, please contact our Partner Collette.Akwana@CMS-DI.com and Associate Racheal.Oruta@CMS-DI.com.
*Contributors
.Peter Munyao, Associate
.Seth Wafula, Trainee Advocate
*Additional Information
Judgment Date: 9 May 2025
Court: Court of Appeal at Malindi
Coram: Achode, Kairu & Korir, JJA
Citation: Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR)
