Wanyonyi v CK Bett Traders Ltd & another (Cause E025 of 2025) [2026] KEELRC 1557 (KLR) (5 June 2026) (Ruling)

Wanyonyi v CK Bett Traders Ltd & another (Cause E025 of 2025) [2026] KEELRC 1557 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1557 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Cause E025 of 2025 JW Keli, J June 5, 2026 Between Cosmas Wanyonyi Applicant and CK Bett Traders Limited 1st Respondent East African Portland Cement Company 2nd Respondent Ruling 1.The Applicant, having obtained an assessment award on a work injury claim from the Director of Occupational Safety and Health Services, filed an application by way of Notice of Motion dated 11th March 2025 brought under Article 162 of the Constitution, Sections 87 of the Employment Act, section 12 of the Employment and Labour Relations Court Act (ELRC Act) and Order 51 rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the Law) seeking for the following orders- .1)That the Honourable Court be pleased to summarily adopt the award by the Directorate of Occupational Health & Safety Services dated the 14th October, 2024.2)That the costs and interest of this application be provided for. 2.Grounds of the applicationa)On or about the 1st August, 2023 the 1st Respondent contracted the Claimant as a general worker seconded to work for the 2nd Respondent in the cement factory.b)That on the 2nd September, 2023 the Claimant while at work had an accident and suffered an injury of colles fracture dislocation and head injury.c)The Respondents had failed to provide the necessary machinery required for the assignment.d)The Claimant was immediately rushed to Kitengela Subcounty Hospital whereby he was treated and informed of the sustained injury of colles fracture dislocation and head injury.e)The doctor advised the Claimant to halt any heavy-duty work to avoid complicating the treatment and the healing process, hence he was confined at home.f)The Claimant visited the Directorate of Occupational Health & Safety Service at Athi River whereby he was given the applicable Dosh Forms.g)The Claimant initiated the report whereby an award was given but the Respondent has total refused to remit the awarded amount despite frequent negotiations.h)It is in the interest of justice that this Application be allowed to ensure that the Claimant is not condemned unheard. 3.The applicant filed his affidavit, in support of the application, sworn on the 5th February 2025, where he annexed his employment contract, a copy of medical records, a copy of the DOSH Form 1, a copy of the DOSH Form 4 and copies of demand letters. 4.In response, the 2nd respondent filed an application vide Notice of Motion dated 29th October 2025 brought under Sections 1A,1B,3A of the Civil Procedure Act, Rule 47, Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and all other enabling provisions of the Law seeking for the following Orders-.a.That the Notice of Motion dated 11th March 2025 be struck out and/or dismissed for being incompetent, fatally defective, and an abuse of the process of this Honourable Court pursuant to Rule 69(2) of Employment and Labour Relations Court (Procedure) Rules.b.That this Honourable Court lacks jurisdiction to entertain the Application for lack of an employment relationship between the Claimant and the 2nd Respondent.c.That this Honourable Court lacks jurisdiction to entertain the Application in so far as it seeks to amend, vary, and/or rewrite the award issued by the Director of Occupational Safety and Health Services, or to impose liability upon the 2nd Respondent, who was neither a party to nor held liable in the said award.d.That the 2nd Respondent be and is hereby struck out of the proceedings; ande.That the costs of this application and of the Claimant's Notice of Motion be awarded to the 2nd Respondent. 5.The application by the 2nd respondent was premised on the following grounds-a.That the instant Application is commenced as an ordinary cause, but it is not anchored on any substantive suit.b.That instant Application is in contravention of Rule 69(2) of the Employment and Labour Relations Court (Procedure) Rules, which makes mandatory for an Application for adoption and enforcement to be made through a miscellaneous Application.c.That the Director of Occupational Safety and Health Services issued an award ONLY against the 1" Respondent, CK. Bett Traders, who was the employer of the Claimant.d.That the 2nd Respondent is not an employer of the Claimant in accordance with Section 4(2) of the Work Injury Benefits Act, was not given notice of the proceedings before the Director and did not participate in those proceedings.e.That this Honourable Court cannot, by way of adoption and enforcement proceedings, impose liability upon a party who was not found liable by the Director, as doing so would amount to usurping the statutory jurisdiction conferred upon the Director under the Work Injury Benefits Act.f.That the Application as filed is incompetent, fatally defective, frivolous, vexatious and an abuse of the process of the Court; andg.That it is in the best interest of justice that the 2nd Respondent's name be struck out and/or the instant Application against the 2nd Respondent be dismissed with costs. 6.The application was supported by an Affidavit of Abdisalan Ali, sworn on the 29th October 2025, where he annexed a copy of the contract for packaging plant services and a copy of the employment contract between the claimant and the 1st respondent. 7.The court on the 6th February 2026 directed that the 2 applications be determined vide this ruling. The parties were directed to file submissions. Decision 8.The court regarded the application by the 2nd respondent as a response to the application for enforcement of the award. 9.The 2nd respondent raised 3 salient points in its application-a.The Director of Occupational Safety and Health Services issued an award ONLY against the 1" Respondent, CK. Bett Traders, who was the employer of the Claimant.b.That the 2nd Respondent is not an employer of the Claimant in accordance with Section 4(2) of the Work Injury Benefits Act, was not given notice of the proceedings before the Director and did not participate in those proceedings.c.That this Honourable Court cannot, by way of adoption and enforcement proceedings, impose liability upon a party who was not found liable by the Director, as doing so would amount to usurping the statutory jurisdiction conferred upon the Director under the Work Injury Benefits Act. 10.The court, on perusal of the record, did not find a response to this application. The court perused the Dosh Forms produced by the applicant. Form DOSH /FORM 1 was the notice by the employer of an occupational accident of an employee. The employer in the form is indicated as C.K Bett Traders Ltd. The form was signed by the 1st respondent’s CEO. The notice by employer is pursuant to section 22 of Work Injury Benefits Act (WIBA)to wit-‘22. Notice of injury or accident by employer to Director(1)Subject to the provisions of this section, an employer shall report an accident to the Director in the prescribed manner within seven days after having received notice of an accident or having learned that an employee has been injured in an accident..’’ DOSH /FORM 4 was a demand for payment of work injury benefit. The demand was for compensation for the accident sent by DOSH to the employer. The demand was addressed to CK Bett Traders Ltd, the 1st respondent. The award was issued by DOSH pursuant to section 26 of WIBA, to wit:-‘26. Claim for compensation(1)A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within twelve months after the date of the accident or, in the case of death, within twelve months after the date of death.(2)If a claim for compensation is not lodged in accordance with subsection (1), the claim for compensation may not be considered under this Act, except where the accident concerned has been reported in accordance with section 21.(3)If an employer fails to report an accident or to provide information requested by the Director as specified in the request, the Director may—(a)conduct an investigation and recover the cost of the investigation from the employer as a debt due from the employer; or(b)levy a penalty on the employer.(4)An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim.’’ 13.The court taking into account the foregoing provisions of WIBA finds that the 2nd respondent was not a necessary party in the application for enforcement of the award. The 2nd respondent is wrongly joined in the application, and its name is struck off the proceedings. To temper justice with mercy, I make no order as to costs, as this was an obvious professional mistake of the advocate for the applicant. Decision On Application Dated 11Th March 2025 14.The matter was erroneously filed as a claim instead of a miscellaneous application under the Court rules. The court invoked section 20 of the Employment and Labour Relations Court Act in favour of the employee that matters in the court are not to be decided on technicalities. The application sought the court's adoption of the DOSH award dated 14th October 2024. The award is not opposed by the 1st respondent. I find no reason not to adopt the award as the same remains unsatisfied. The award dated 14th October 2024 for Kshs. 432,000/- is adopted as an Order of the court in favour of the applicant as against the 1st respondent. 15.The file is marked as closed. 16.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant - Ngeno1st respondent- Akech2nd Respondent- Simon Peter