Introduction
The Employment and Labour Relations Court (ELRC) has delivered a significant judgment that reinforces the necessity of procedural fairness and strict evidentiary standards in work injury disputes.
In the consolidated appeal of Maersk Logistics and Services Kenya Limited & Absa Insurance Kenya Limited v Directorate of Occupational Safety & Sarah Akoth Asiyo [2026] eKLR, the Court set aside a substantial compensation award, signaling a robust defense against unprocedural administrative actions and unsubstantiated claims. This decision highlights that while the Work Injury Benefits Act (WIBA) provides a framework for employee protection, it does not exempt administrative bodies from constitutional mandates of fair hearing and statutory timelines.
Brief Factual Background
The dispute originated from a claim filed by Sarah Akoth Asiyo (the 2nd Respondent), an Airfreight Associate, who alleged she sustained injuries while working for Maersk Logistics (the 1st Appellant). She claimed the injury resulted from a commotion at the cargo terminus where she was trampled on by others. Notably, she resumed work just two days after the alleged incident and continued her duties until her termination. In June 2022, she sued for compensation, and the matter was eventually referred to the Director of Occupational Safety and Health Services (DOSH). On 1st August, 2024, the Director awarded her Kshs. 3,324,247.20 based on a 50% permanent disability assessment conducted six years after the alleged accident. Both the employer and its insurer, Absa Insurance Kenya Limited (the 2nd Appellant), lodged objections which were dismissed by the Director on 23rd October, 2024.
The Core Issues: Statutory Compliance and Constitutional Rights
The court identified several pivotal legal questions regarding the conduct of the Director and the merits of the underlying claim:
Violation of Statutory Timelines
A central procedural flaw was the Director’s failure to adhere to the mandatory timelines set out in Section 52(1) of the Work Injury Benefits Act. This section requires the Director to provide a written answer to an objection within fourteen days of receipt. In this instance, the Director delivered the objection decision nearly a month after the objections were filed, which the court found to be a contravention of the Act.
The Right to Disclosure and a Fair Hearing
Perhaps the most egregious procedural error was the Director’s refusal to share an investigation report prepared by Eng. Khalid Salim. Despite repeated requests from the Appellants, the Director withheld the report, claiming it contained information already known to the parties. The court held that this hidden report was a violent affront to the right to access information and fair administrative action under Articles 35, 47, and 50 of the Constitution. Keeping a party in the dark regarding evidence relied upon by a tribunal renders the resulting decision a nullity.
Causality and Credibility of Evidence
Upon re-evaluating the facts, the court found deep inconsistencies in the 2nd Respondent’s account. While her formal claim cited a commotion at the cargo terminus, her own internal email correspondence from 2021 described the incident as falling on a staircase. Furthermore, there was no evidence of hospital admission at the time of the alleged injury, and she had worked for over a year post-incident without reporting any back pain or incapacity. The court also noted her failure to disclose a subsequent 2019 accident to the medical evaluators in 2024, making it impossible to link her current health status to the 2018 workplace event.
Causation, Quantum, and Relief
The court applied the principle that an appellate court must reconsider and evaluate evidence itself to draw its own conclusions. It emphasized that under Section 29 of WIBA, the right to compensation for temporary disablement expires when an employee resumes work. Since the 2nd Respondent worked throughout her tenure until termination, the claim of 50% disability lacked a causal link to the workplace injury. Regarding the insurer, Absa successfully argued that no claim was lodged within the six-month window required by the policy, and that the policy had ceased effect years before the DOSH award was made. Consequently, the court found the award had no basis and set it aside in its entirety.
Conclusion & Impact for the Labor Sector
This judgment serves as a vital precedent for employers and insurers in Kenya. It reinforces that Procedural Fairness is Mandatory and Administrative bodies like DOSH cannot bypass the constitutional right to a fair hearing by withholding investigation reports or ignoring statutory timelines.
Additionally, the Burden of Proof Remains High as Employees must demonstrate a clear and consistent causal link between a workplace incident and their disability. Inconsistencies in reporting and long delays in seeking medical evaluation can be fatal to a claim.
Finally, the ELRC will not hesitate to set aside awards if a tribunal misdirects itself or fails to consider material evidence.
For the insurance sector, the ruling validates the enforceability of policy notification timelines and the principle of privacy of contract, protecting insurers from being forced to settle stale or unnotified claims years after a policy has expired.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our Employment and Labour Relations Department at WAELR@wamaeallen.com
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
Frankline M. Otieno is a dispute resolution associate, recommended professional and committed to offering sustainable client-centred solutions to legal issues.Frankline is astute in commercial litigation, securities law, banking law, intellectual property litigation, public procurement, land law litigation, Judicial Review and Administrative law litigation, sports law, tax litigation, administrative law, consumer protection law, competition law and constitutional litigation.
Flavious is an Associate in the Real Estate and Securitization Department.
She has vast knowledge and hands on experience in Real Estate, Securitization, Banking, Finance, Company Law, Corporate Governance, Insolvency and Commercial Law. She also has keen interest in policy making and emerging legal commercial issues in general.
She is a promising transactional advocate with exemplary interpersonal skills and exudes diligence, integrity, resilience, confidence and great enthusiasm in all her tasks.
Nadio George is a dedicated Advocate of the High Court of Kenya, passionate about legal excellence, societal progress, and environmental stewardship. Admitted to the Roll of Advocates in 2023, he combines deep legal expertise with a strong commitment to making meaningful contributions to both the legal profession and the community.
