https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2330

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA** **MISCELLANEOUS APPLICATION NO. E011 OF 2025** **CHRISPINUS KIRABU ONYAKA………………...…. APPLICANT** **-VERSUS**- **BUNGOMALINE SAFARIS LIMITED……………………………………………...RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. In a ruling delivered on 29th January 2026 pursuant to an application dated 9th December 2025 by the Applicant, the Court adopted the award by the Director of Occupational Health and Safety(DOSH) dated 15th September 2019 in the sum of Kshs2,246,000/= as a judgement of the Court in favour of the Applicant against the Respondent. 3. In a Notice of Motion dated 23rd March 2026 (the application), filed through Wakoli & Wakoli Advocates, the Respondent is seeking for the following reliefs – 4. ***Spent.*** 5. ***That this Honourable Court issues an Order staying execution of the Judgment and decree issued by this Court pending hearing and determination of this Application.*** 6. ***That this Honourable Court issues an Order setting aside the ex parte Judgment entered against the Respondent and all other consequential Orders thereof and the Respondent be granted leave to defend the suit against it.*** 7. ***That the Response attached to the Application be deemed as properly filed.*** 8. ***That costs of this Application and that of the Auctioneer be borne by the Plaintiff*** 9. The application is expressed to be founded on ***Sections 1A, 1B, & 3A of the Civil Procedure Act, Order 10 Rule 11, Order 22 Rule 22, & Order 51(1) of the Civil Procedure Rules***. It is based on the grounds on the face of it. 10. The application is supported with the affidavit sworn by Michael Samwel Keya, a manager of the Respondent, on 23rd March 2026. A replying affidavit by Michael Samwel Keya, sworn on even date in response to the application dated 9th December 2025, which has already been determined, was also filed. 11. Upon service, the Applicant through J.B Otsiula & Associates Advocates filed a replying affidavit sworn by himself on 13th April 2026. 12. When the matter came up for directions on 15th April 2026, the court issued interim orders of stay, conditional on the Respondent/Applicant depositing a sum of Kshs1,000,000/= in court within 30 days of that date. The court further directed that the application be canvassed by way of written submissions. 13. When the matter came up for further directions on 4th June 2026, the Respondent had not complied with the conditions for stay and, the interim orders for stay of execution were lifted. 14. Counsel for the Applicant filed written submissions dated 3rd June 2026, alongside the cited decisions. The Respondent did not file any written submissions as directed by the court. 15. **EVIDENCE** 16. In the supporting affidavit, it is deposed that the ex parte judgment was entered without the Respondent/Applicant’s knowledge, as it was not served with the application dated 9th December 2025. It is asserted that the affidavit of service filed was erroneous because the email address used for service did not belong to Bungomaline Safaris Limited whose official email address is **info.bungomalinesafaris@gmail.com**. It was deposed that Bungoma Line Sacco Ltd and Bungomaline Safaris Ltd are separate entities with different offices and staff. 17. It is deposed that the Respondent only became aware of the proceedings after a member of Bungoma Line Sacco Ltd informed them upon finding a court order at their Sacco's office. It is deposed that the Respondent has a strong and arguable defence, that it would be prejudiced if the judgment is not set aside as it would have been condemned unheard and, that the interests of justice and the balance of convenience favour allowing the application. 18. In its proposed response to the application dated 9th December 2025, the Respondent denies that an employment relationship existed between the parties, stating that although the Applicant/Respondent sought employment as a driver in 2023 and was advised to obtain a PSV badge and insurance before being placed in the pool of prospective drivers, he had neither been allocated a motor vehicle nor executed a contract of employment. 19. It was deponed that allocation of vehicles is done on a first-come, first-served basis and only after allocation is an employment agreement entered into between the driver and the Respondent. It is therefore contended that, as at the time of the alleged accident on 12th October 2023, the Applicant was neither an employee nor acting under the instructions or authority from the Respondent. It is further deposed that the Motor Vehicle Registration No. KCJ 682U, which the Applicant/Respondent alleged to have been driving, has never been owned, insured, or possessed by the Respondent and, any liability arising from the accident lies with the actual owner or employer of that vehicle and not the Respondent. 20. In the replying affidavit, the Applicant deposed that under the ***Work Injury Benefits Act (WIBA)*** all occupational injuries must be reported to the Directorate of Occupational Safety and Health Services (DOSH) and that the Respondent failed to complete and submit the mandatory Form DOSH 1 despite repeated requests from the County Occupational Safety and Health Officer, thereby forfeiting its opportunity to be heard by DOSH. 21. The Applicant further stated that the assertion by the Respondent that it was not served with the application is false. The Applicant stated that the Respondent was initially served with a letter from DOSH dated 7th November 2024 requiring it to lodge a WIBA claim and, was subsequently reminded of the same in a letter dated 4th July 2025 to complete the Form DOSH 1. The Applicant avers that a statutory demand dated 21st October 2025 was served upon the Respondent through its email address and that on 11th December 2025, the application dated 9th December 2025 together with the court order of 11th December 2025 were similarly served by email, as evidenced by the affidavit of service and email extracts annexed to the affidavit. 22. The Applicant contends that the Respondent deliberately ignored the statutory process under ***WIBA*** notwithstanding that it was duly served and notified of the proceedings by DOSH and the Applicant. 23. The Applicant stated that the application is merely intended to delay the conclusion of the matter and urged the Court to dismiss the application with costs. 24. **SUBMISSIONS** 25. Counsel for the Applicant identified the following issues for determination – *Whether the Respondent/Applicant was duly notified and served with the requisite statutory notices and pleadings; Whether the Respondent/Applicant failed to comply with the mandatory procedures under the Work Injury Benefits Act, 2007; Whether the application dated 23rd March 2026 is merited; and, Who should bear the costs of the application.* 26. On the first issue, it is submitted that the Respondent was duly served with letters from DOSH dated 7th November 2024 and 4th July 2025 requiring completion of DOSH 1 Form, as well as the statutory notice, the application and the court order through its email address. It is argued that the Respondent deliberately refused to acknowledge service. It is submitted that the Respondent had knowledge of the proceedings by admitting that it became aware of the same through Bungoma Line Sacco, which shares offices with the Respondent. 27. On the second issue, Counsel cited ***Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR)*** wherein the Supreme Court stated that work injury claims must first be processed through the DOSH before any action in court. Further, Counsel cited ***Attorney General v Law Society of Kenya & another [2017] KECA 176 (KLR)****,* wherein the Court of Appeal held that DOSH has original jurisdiction over work injury claims. Counsel submitted that the Applicant failed to comply with S***ection 21 of the Work Injury Benefits Act*** by neglecting to submit DOSH 1 Form or participate in the statutory process. 28. Counsel further submitted that the application is frivolous, vexatious and an abuse of the court process as the Respondent ignored the statutory process and failed to demonstrate sufficient cause for the Court to exercise its discretion in its favour. Counsel cited ***Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)* in demonstrating the conditions for setting aside ex-parte proceedings***.* 29. The court is urged to dismiss the application with costs. 30. **ANALYSIS & DETERMINATION** 31. The facts and the circumstances leading to the filing of this application have come out in the preceding parts of this ruling. The Respondent is seeking orders for a stay of execution and setting aside of the court’s ruling delivered on 29th January 2026. 32. On stay of execution, the court on 15th April 2026 granted to the Respondent a conditional stay of execution on condition that it deposited with the court a sum of Kshs1,000,000/= as security for costs. The Respondent failed to comply with this order and the stay was discharged. 33. On the 2nd prayer, the principles for setting aside interlocutory orders and judgements are somehow well settled. In ***Patel vs East Africa Cargo Handling Services* *1974] EA 75* Duffus, V.P.** stated that –***The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue", that is an issue which raises a prima facie defence and which should go to trial for adjudication.******Emphasis Added*** 34. The application by the Applicant dated 9th December 2025 was for the adoption of the award by DOSH as a judgment of the Court. Since there was no objection or opposition to the application, the court allowed the application. It is that ex-parte ruling that the Respondent now seeks to set aside. 35. The court has considered the intended response to the applicant by the Respondent and notes that the Respondent denies that the Applicant was involved in a motor vehicle accident while in its employee. 36. The court returns that DOSH is empowered under***Section 23 of WIBA*** upon receiving a notice of an accident or having learned that an employee has been injured in an accident, to make such inquiries as are necessary to decide upon any claim or liability in accordance with ***WIBA***. The inquiry on whether a person is in employment is made by DOSH. This court, based on the said application was only requested to adopt the already made award. The Respondent is opposed to the award as opposed to the adoption of the same by the court but, the proper forum is before DOSH by way of an objection or an appeal. The Respondent has thus not demonstrated any issue that is triable by this Court to warrant the setting aside of the ruling delivered on 29th January 2026. 37. Accordingly, the Notice of Motion by the Respondent dated 23rd March 2026 is devoid of merit and is hereby dismissed. 38. **ORDERS** 39. The court orders that – 40. ***The Notice of Motion by the Respondent dated 23rd March 2026 is devoid of merit and hereby dismissed.*** 41. ***Costs to the Applicant*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 30TH DAY OF JULY 2026.** **....................................** **DAVID NDERITU** **JUDGE**