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By SHABAN MAKOKHA
Nairobi, Kenya: One of Kenya’s key state agencies has suffered a sharp rebuke after the Employment and Labour Relations Court dismissed a judicial review application to quash a Sh17,048,684 compensation award.
The Nuclear Power and Energy Agency (NuPEA) was seeking to quash a Sh17,048,684 compensation award issued to one of its senior engineers injured in a pre-dawn road accident.
Lady Justice Hellen Wasilwa, delivering judgment virtually on February 25, 2026, in ELRC Judicial Review No. E058 of 2025, ruled that NuPEA’s attempt to challenge the award through judicial review was “improperly before the court” and that the correct path was an ordinary appeal under the Work Injury Benefits Act (WIBA).
The dispute centres on a road traffic accident that occurred at approximately 4:00 a.m. on July 18, 2024, along University Way Roundabout in Nairobi. **Eng. Elvis Njenga Kimani**, a Principal Engineer at NuPEA, was driving his personal vehicle when the crash took place. He sustained serious injuries leading to a 35% permanent incapacity assessment.
NuPEA Directorate of Occupational Safety and Health Services (DOSH) after receiving an accident notification form (ML/DOSH Form 1) completed and submitted by NuPEA itself on October 24, 2024, processed the claim through its online OSHMIS portal.
On November 29, 2024, DOSH issued a formal demand (Form 4) to NuPEA for payment of Sh 17,048,684 under Work Injury Benefits Act (WIBA).
NuPEA, however, later turned around and filed for judicial review, arguing that DOSH acted ultra vires (beyond its powers) because the accident did not arise “out of and in the course of employment.”
The agency pointed to the early hour, the use of a personal vehicle, and the fact that the incident occurred outside official working hours (8:00a.m–5:00p.m.) and away from its South C offices.
NuPEA insisted the claim should fall under its Group Personal Accident insurance policy instead of WIBA, and that DOSH’s own supplementary affidavit filed in November 2025 effectively admitted the award was issued in error due to the automated nature of the OSHMIS system.
Eng Kimani fought back fiercely arguing that he had been summoned at short notice to chair an important meeting on behalf of a director the following day — a task that required him to beat Nairobi traffic by leaving extremely early.
He produced email correspondence showing the meeting arrangement and maintained that his early commute was a reasonable incident of employment.
Critically, Kimani highlighted that NuPEA had voluntarily reported the accident to DOSH, completed the required statutory form, requested finalisation of the claim “to facilitate settlement by its insurer,” and never lodged an objection within the 60-day window provided under section 51 of WIBA.
Justice Wasilwa sided decisively with the injured engineer on the core question of whether the claim fell under WIBA.
The judge found that by actively participating in the statutory process including submitting Form 1 and writing a formal letter dated October 25, 2024, acknowledging the incident and seeking completion of medical assessment NuPEA had effectively accepted the accident as work-related.
Citing precedent in Toub v Vintage Concept & Another [2022] and related authorities on estoppel, the court held that an employer cannot “approbate and reprobate” — that is, first treat an incident as compensable under WIBA and later deny liability once the bill arrives.
On the procedural front, the judge ruled that WIBA provides a clear internal dispute mechanism: objection to the Director within 60 days (section 51), followed by appeal to the Employment and Labour Relations Court (section 52).
Because NuPEA bypassed that route and jumped straight to judicial review, the application was dismissed as improperly filed.
The court awarded costs to the respondents
The ruling leaves the Sh17 million award intact and enforceable unless successfully challenged through the proper appeal channel.
It also serves as a stern reminder to employers especially state corporations that voluntary participation in the WIBA claims process can lock them into liability, and that automated digital systems do not absolve agencies of the duty to scrutinise claims before payments are demanded.
For now, Eng Elvis Njenga Kimani’s long fight for compensation appears to have cleared a major hurdle — at the expense of NuPEA’s bid to walk away from the bill.
