Court upholds Sh21.9m award for driver injured in Al-Shabaab attack

On April 9, 2024, Mwalimu Mohamed Babuhija was driving a Crustancean Processors Limited vehicle along the Malindi-Lamu road in Hindi when Al-Shabaab militia opened fire on a convoy of vehicles and he was shot.

A bullet hit the vehicle Babuhija was driving, and falling glass shards injured him.

On February 19, 2025, the Director of Occupational Safety and Health Services (DOSH) ordered the company to pay Babuhija Sh21,918,620 as compensation for the injuries.

The processing, distribution, and export of fresh and frozen fish and seafood company denied responsibility and liability for Babuhija’s injuries.

On March 22, 2025, Babuhija stormed the company’s offices and allegedly assaulted the Director Asif Verjee for failing to pay him the said award.

Dissatisfied with DOSH’ award on Babuhija, the company filed an appeal.

However, on June 29, Justice Monica Mbaru dismissed the appeal by Crustancean Processors Limited challenging the award terming it an abuse of court process.

Justice Mbaru said moving the court under an appeal and seeking leave to file one out of time is an abuse of the court process, a form of unnecessary multiplicity of suits, and does not foster the proper administration of justice.

“Application dated March 13, 2026, being an abuse of court process, is without merit and is dismissed,” said Justice Mbaru.

The judge said that the company failed to lodge an appeal within the 30 days as stipulated under Section 52(2) of the Work Injury Benefit Act (WIBA) upon the decision of the DOSH following a work-related injury.

She said filing an appeal and then applying for leave to file the same appeal out of time is sheer abuse of the court process.

“The appellant (Crustancean Processors Limited) has admitted that there exists Mombasa ELRC Misc. Application No. E123 of 2025 over the same matters relating to the respondent (Babuhija) seeking to enforce the award of the DOSH. The Appellant has filed objections with DOSH. A decision is pending before the DOSH and the Court on the same subject matter,” said Justice Mbaru.

According to Babuhija, the company failed to file an objection of DOSH award within the stipulated 60 days period.

He said that under section 51(2) of the Work Injury Benefits Act (WIBA), objections to the DOSH should be made in writing to DOSH, which the company failed to do.

“Under section 52(2) of WIBA, an aggrieved party from the decision of DOSH on work injury award should file an appeal to the court within 30 days, which was not done by the appellant,” said Babuhija.

However, Verjee argued that the delay in filing the appeal was not deliberate.

Verjee told Justice Mbaru that the judgment of DOSH was not served on them thereby preventing them from filing the appeal on time.

He said that he only became aware of the suit filed against the company at the Employment and Labour Relations Court (ELRC) on February 19 2026, when it came up for hearing.

Verjee told the court that DOSH responded to the company’s objections through a letter dated March 25, 2026, and the objection is scheduled for a hearing on 22 April 2026. 

He argued that while the objections are still under consideration, the scheduled judgment is irregular and premature.

The Director said that Babuhija assaulted him for allegedly failing to compensate him for injuries sustained.

“On April 9 2024, Babuhija was driving the Crustancean’ vehicle when militants believed to be Al-Shabab terrorists attacked the convoy of motor vehicles and opened fire. In the process, a bullet hit Crustancean’ vehicle, and falling glass shards slightly injured the driver,” said Verjee.