https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1633

Omuse (Suing as the Legal Representative of the Estate of Magdalene Wamai Ekuot - Deceased) v County Government of Busia (Miscellaneous Application E006 of 2025) [2026] KEELRC 1633 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1633 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Miscellaneous Application E006 of 2025 DN Nderitu, J June 11, 2026 IN THE MATTER OF: ENFORCEMENT OF THE AWARD OF THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES, BUNGOMA AND IN THE MATTER OF: SECTIONS 10(1), 19(2), 34, AND 51 OF THE WORK INJURY BENEFITS ACT CAP 236 AND IN THE MATTER OF: ARTICLES 27(1) & (2), 41(1) AND 162(2) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT AND THE INHERENT POWERS OF THE COURT AND IN THE MATTER OF: RULE 69 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT [PROCEDURE] RULES, 2024 Between Carol Ekuot Omuse (Suing as the Legal Representative of the Estate of Magdalene Wamai Ekuot - Deceased) Applicant and County Government of Busia Respondent Ruling I. Introduction 1.The Applicant through Odunga & Associates Advocates filed an amended notice of motion (the application) dated 5th November 2025 seeking for the following orders –1.Spent.2.The Honorable Court be pleased to adopt as judgment of the Court, the assessment/award of the Director of Occupational Safety and Health Services, Bungoma made on 20th December 2019 as judgment of the Court.3.Upon such adoption, a Decree do issue for;a.The sum of Kshs6,364,800/= being the Director's award/assessment made on 20th December, 2019; andb.The sum of Kshs738,411/- being the reasonable burial expenses spent towards laying the Deceased to rest;c.Interests on (a) & (b) above compounded annually at court rates from the date of the award (20th December 2019) until payment in full.4.Costs of this Application be awarded to the Applicant. 2.The application is expressed to be brought under Article 162 of the Constitution, Section 12 of the Employment and Labour Relations Court Act, Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Section 19(2) and 51 of the Work Injury Benefits Act, Order 40 and 51 of the Civil Procedure Rules, 2010 Articles 159(2)(d) of the Constitution; and, all enabling provisions of law. 3.The application is based on the grounds on the face of it and supported with the affidavit of the Applicant, sworn on even date, with several annexures thereto. 4.Upon service of the application, the Respondent through the County Attorney filed a replying affidavit sworn by Daniel Okolong Omuse, the Human Resource Management Officer of the Respondent, on 15th December 2025. 5.In answer to the Respondent’s replying affidavit, the Applicant filed a supplementary affidavit sworn by herself on 12th February 2026. 6.By consent and upon directions by the court, the application was canvassed by way of written submissions. Mr. Weloba, for the Applicant filed written submissions dated 12th February 2026 and Mr. Mabachi for the respondent filed submissions dated 10th March 2026. II. The Evidence 7.In the supporting and supplementary affidavits by the Applicant, it is deponed that the Applicant is the widower and beneficiary of the Estate of the late Magdalene Wamai Ekuot, who died from work-related injuries on 21st August, 2019 while working for the Respondent. It is deponed that the death was promptly reported and the Directorate of Occupational Safety and Health Services (DOSH) assessed 100% incapacity, awarding the estate Kshs6,364,800/= in compensation, plus reasonable funeral expenses as provided for by the law. It is stated that the Respondent was notified of the award on 20th December 2019 and neither objected to not appeal the same. It also did not pay the awarded sum. 8.The Applicant stated that all the legal requirements for reporting and assessment of the claim were met within four months of the incident and disputes the Respondent's allegations of delayed notification. The Applicant further asserts that the Court's jurisdiction is limited to appeals under Work Injury Benefits Act (WIBA) and that the Respondent's only objection concerns burial expenses. 9.The Applicant provided receipts as evidence for the burial expenses, arguing that they are specifically claimable under the law and have been properly substantiated. 10.The Applicant seeks enforcement of the award alongside funeral expenses and urges the Court to compel the Respondent to settle the claim 11.The Replying Affidavit it is deponed that a notification of an accident/disease to the employer should be done within 12 months of its occurrence, which was not done, and thus the employer had no prior knowledge of the same. 12.The deponent further stated that the Respondent was neither a party to nor involved in the process leading to the assessment and the award by the Director OSHA). It is deposed that no lawful award was made against the Respondent capable of being adopted by the court. The deponent states that the process culminating in the award dated 20th December 2019 was un-procedural and unlawful. 13.The deponent further stated that the Respondent neither participated in the award process nor received notice of the award within the time allowed as to enable it lodge an objection or appeal. It is asserted that the Respondent was not notified of the proceedings before the Director and was therefore denied an opportunity to present its case, contrary to the principles of fair hearing protected and guaranteed under the Constitution. 14.The deponent further stated that there is no evidence showing that the fatal injury to the deceased arose out of and in the course of his employment. it is stated that the accident and death were not work-related and could have resulted from the deceased employee’s deliberate misconduct or failure to follow medication instructions. 15.Further, it is stated that the assessment and the award were procedurally irregular as the mandatory procedures under the WIBA were not followed, including proper medical assessment procedures. The deponent concluded that adoption and enforcement of the award would be unlawful because the legality of the process through which it was obtained is questionable. 16.With regard to the claim for funeral expenses amounting to Kshs738,411/=, the deponent stated that the receipts produced by the Applicant are questionable, exaggerated, and an afterthought. The court is urged not to grant the orders sought by the Applicant. III. Submissions 17.Counsel for the Applicant submitted on two issues – Whether the court should adopt the director’s award of Kshs6,364,800/=; and, Whether the Applicant is entitled to burial expenses amounting to Kshs738,411. 18.It is submitted that under the structure of WIBA, the Employment and Labour Relations Court (ELRC) exercises appellate rather than original jurisdiction in matters arising from the Director’s assessment and award. Consequently, the court ought not to entertain contentious issues such as alleged non-service in an application seeking adoption and enforcement of an award. In support of this proposition, counsel cited Samada v Supplies & Services Limited & another [2025] KEELRC 3301, wherein the court held that where no objection or appeal is filed against the award, the court should not delve into contentious factual disputes during enforcement proceedings. 19.On the issue of burial expenses, counsel submitted that such expenses are payable under Section 34 of the WIBA where death results from a work-related injury. It was submitted that denying the estate burial expenses amounts to depriving the estate of a statutory entitlement, particularly where there was no dispute that the deceased had indeed been buried. 20.Counsel acknowledged that while WIBA contemplates regulations prescribing what amounts to “reasonable burial expenses”, such regulations have not yet been enacted. But nonetheless, counsel maintained that the court retained the jurisdiction to assess and award reasonable funeral expenses based on the circumstances of each case. 21.Counsel maintained that this claim was specifically pleaded and sufficiently proved. Citing Ndaya & another (Suing for and on Behalf of the Estate of Musa Kulecho Nyundo – Deceased) v Handyman Staffing Solutions & another [2026] KEELRC 13 (KLR), counsel for the Applicant submitted that an award of Kshs300,000/= would constitute reasonable burial expenses in the circumstances. 22.Counsel urged the court to adopt the award of Kshs6,364,800/= as a judgment of the court and award reasonable burial expenses at Kshs300,000/= together with costs and interest. 23.On the other hand, Counsel for the Respondent identified the following two issues for the determination by the court – Whether the applicant’s application is merited and consequently if she is entitled to the orders sought, and, Who bears for the costs of the application? 24.According to counsel for the Respondent, the claim was time-barred as at the time it was filed with the Director since the alleged accident was not reported to the employer within 12 months as required by law and, the employer had no prior knowledge of the accident. 25.Counsel argued that the Respondent was not involved in the proceedings before the Director, OSHA, and was neither served with notices nor accorded an opportunity to participate in the process. It is submitted that no award was therefore validly made against the Respondent capable of adoption by the court. It is submitted that the entire process leading to the award was un-procedural and unlawful for want of compliance with the principles of natural justice and fair hearing guaranteed under Articles 25 and 50 of the Constitution. It is submitted that the Respondent was condemned unheard. 26.In support of the above position, counsel cited Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) to the effect that disputes ought to be determined on merit after all parties have been accorded an opportunity to be heard. It is further argued that the Applicant failed to provide evidence demonstrating that the Respondent was involved in the process leading the award or served with notices of the proceedings or the award. 27.Counsel also disputed the Respondent’s liability for the alleged injury and death, submitting that there is no evidence showing that the injury arose out of and in the course of the deceased’s employment. It is submitted for the Respondent that the Director failed to follow mandatory procedures under WIBA, including proper medical assessment procedures, thereby rendering the award questionable and unenforceable. 28.Further, counsel submitted that the Applicant had failed to discharge the burden of proof on a balance of probabilities. It argued that no evidence was adduced showing when, how, or whether the Respondent was notified of the accident. Counsel cited Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another (2014) eKLR on the principle that a claimant bears the burden of proof even where the opposing party does not rebut the claim. 29.Regarding the claim for funeral expenses, counsel challenged the authenticity and credibility of the receipts produced by the Applicant. It is submitted that the amounts in the receipts appeared exaggerated, questionable, and possibly fabricated since they allegedly originated from the same supplier and all of them bore similar handwriting. It is argued that the receipts are an afterthought and do not constitute strict proof of special damages. 30.Counsel relied on Machine v Kalii (Civil Appeal E219 of 2023) [2025] KEHC 11767 (KLR) (5 May 2025) (Judgment) on the principle that special damages must not only be specifically pleaded but also strictly proved through credible documentary evidence. 31.Counsel further submitted that it could not have lodged an objection or appeal against the Director’s award within the statutory timelines because the Respondent was not served with or notified of the proceedings or the resultant award by the Director. It is submitted that the Respondent only became aware of the award upon being served with the instant application for enforcement. Counsel cited Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi (2012) eKLR in emphasizing the need for compliance with procedural requirements in litigation. 32.On costs, the Respondent submitted that under Section 27 of the Civil Procedure Act, costs follow the event and should therefore be awarded to the successful party. Consequently, it is prayed that the application be dismissed with costs. IV. Issues For Determination 33.The factual background leading to this application has been set out by the parties and their respective counsel as per the summary in the preceding parts of this ruling. The gist of the application is that the Applicant was awarded by DOSH as alluded to above and, the respondent has neither settled the award nor made acceptable or reasonable proposals on the settlement of the same. It is also a fact that the Respondent neither objected to the award nor appealed the same. 34.However, Respondent contends that it was not notified of or demanded to settle the award. Further, it is contended that the Respondent was neither notified of the accident nor involved in the proceedings culminating in the award. The Respondent objects to the claim of funeral expenses, arguing that the receipts adduced by the Applicant are fictitious and an afterthought. 35.Upon the court considering the evidence availed by way of affidavits and the arguments advanced in the submissions by counsel from both sides, the following issues commend themselves to the court for determination –a.Whether the claim is statute-barredb.Whether the process leading to the award was proceduralc.Whether the Respondent is liable for the settlement of the DOSH award of Kshs6,364,800d.Whether the Applicant is entitled to the sum of Kshs738,411/= claimed for funeral expenses.e.Who bears the costs of this application? V. Statute Barred/limitation 36.The Respondent contends that the accident leading to the demise of the deceased was not reported within 12 months as required by law and if did not have any prior knowledge of the accident. It is submitted that this rendered the claim statute-barred and the award unlawful. 37.By dint of Section 26 (1) of WIBA, a claim for compensation in accordance with the Act shall be lodged by or on behalf of the claimant in the prescribed manner within 12 months after the date of the accident or, in the case of death, within 12 months after the date of death. 38.The Respondent did not deny that the deceased was its employee, save that the report of the accident culminating in her death was allegedly not reported to it. Section 21 (5) of WIBA provides that an employee can report an occupational accident or disease to the Director at any stage. The Director once informed of an accident is mandated to conduct investigations to establish the facts of the alleged accident. 39.In any event, under Section 27 (2) of WIBA, failure to report an accident to an employer is not a bar to compensation if it is proved that the employer had knowledge of the accident from another source or if the employer would not be prejudiced by such omission. 40.The deceased died on 21st August 2019 and, by 20th December 2019, an award had been issued against the respondent. This was within the statutory period of 12 months and thus not statute-barred. In any event, an employer is expected to at all-time account for the absence of employees from work. It cannot be true that the Respondent was not aware of the accident and the death from its Human Resource Department that would be irresponsible and unlawful. VI. Unprocedural Process 41.The Respondent claims the process leading to the award was un-procedural in that the DOSH failed to follow the procedural requirements for assessment. It is contended that neither a notification to the Respondent nor a proper medical assessment was conducted, purportedly rendering the entire process illegal. 42.DOSH is a public administrative body that renders awards for work-related injuries and diseases. A party that considers the procedure leading to an award by DOSH un-procedural has recourse in lodging an application for Judicial Review to quash the award before adoption by the court and seeking to have the adoption proceedings stayed. Further, a respondent has a right of appeal to DOSH within the time allowed in law. 43.However, the Respondent did not take any steps aimed at setting aside or reviewing of the award. 44.The present application is for adoption of the award and not a judicial review or an appeal of the award. The Respondent has not challenged the procedure leading to the award in any manner recognized in law. VII. Liability 45.The documents filed by the Applicant, particularly the Notice by Employer of an Occupational Accident (DOSH Form 1), clearly show that the deceased was employed by the Respondent as a Chief Animal Health Assistant and that the cause of his death was a fatal head injury caused by a road accident while proceeding to a slaughterhouse operated by the Respondent. The only defence raised by the Respondent is that it was not informed of the accident and the award made on time. The respondent did not deny that the deceased was its employee as pleaded in the application and that he denied from injuries sustained while on duty. 46.Having assessed the compensation payable to the deceased estate, the Director sent his decision (DOSH/WIBA4) and demand for payment, dated 20/12/2019 to the Respondent. The Respondent did not object to the award pursuant to Section 51 of the WIBA. Therefore, the award of Kshs6,364,800/= became due and payable to the deceased’s estate by the Respondent. Clearly and evidently, the Respondent was duly notified of the accident, the death and the award. 47.This court has the jurisdiction to adopt the award and the same is hereby adopted and judgment entered in the terms thereof. VIII. Funeral Expenses 48.The Respondent objects to the award of funeral expenses in that the receipts for the funeral expenses are fictitious and an afterthought. The Applicant prayed for Kshs738,411/= but in the submissions counsel concedes to an award of Ksh300,000/=. 49.This court has held time and time again that there is no legal wrong without a remedy – Ubi jus ibi remedium. Although the Minister has not formulated the regulations envisaged under Section 34 of WIBA, the court cannot and should not sit back and fail to remedy and compensate the Applicant, albeit only for fair, just, reasonable, and lawful expenses incurred in the funeral and burial of the deceased. 50.It is not in dispute that the remains of the deceased were indeed interred. For sure, some expenses were incurred in the burial for a death that was directly related to his employment with the Respondent. The court has for sure to order reasonable compensation for genuine and necessary burial expenses that were incurred. 51.The court has gone through the receipts provided by the Applicant in support of the expenses incurred in the funeral and burial. While the Respondent challenged the authenticity of the said documents, there was no application made to compel the makers to appear in court and or swear affidavits in support of the claimed payments. The court further notes that some of the receipts neither in the name of the Applicant nor can the makers be ascertained, as they simply indicate ‘Cash sale’ without the name of the merchant. 52.In most African cultures and traditions mourners are fed, and tents are pitched for days or weeks. There is also no dispute that the body must have been cleared, preserved, a grave dug, the body clothed, and transported for burial. However, it is also fair and just to comment that funerals and burials should not be turned into feasts. 53.Doing the best that I can do in the circumstances, the court awards a sum of Kshs300,000/= as reasonable expenses incurred for the burial/funeral.IX. Ordersi.The Notice of Motion by the Applicant as amended on 5th November 2025 is hereby allowed as hereunder –a.The award of Kshs6,364,800/= made by the Director is hereby affirmed and adopted and judgment entered therefor for the Applicant against the Respondent.b.The Applicant is awarded a sum of Kshs300,000/= being reasonable funeral expenses.c.The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.d.The award in (b) above shall attract interest from the date of this ruling till payment in full.e.Costs of the application to the Applicant.f.A decree shall issue accordingly. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA