https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1336

Kinyua v Kenya Tea Development Agency (KTDA) Management Services Limited (Miscellaneous Application E002 of 2026) [2026] KEELRC 1336 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1336 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Miscellaneous Application E002 of 2026 SC Rutto, J May 15, 2026 Between Daniel Muthii Kinyua Applicant and Kenya Tea Development Agency (KTDA) Management Services Limited Respondent Ruling 1.Through a Notice of Motion dated 31st January 2026, the Applicant herein seeks the following orders:1.That the Honourable Court be pleased to adopt as a judgment of the Court, the Director’s award issued on 23rd November 2022 assessing the Applicant’s compensation at Kshs 1,821,141.60.2.That judgment be entered for the Applicant against the Respondent in the sum of Kshs 1,821,141.60.3.That a decree do issue and be enforceable in accordance with the Court’s rules.4.That the decretal sum do attract interest at court rates from the date of judgment of this Honourable court until payment in full.5.That the costs of this application be borne by the Respondent. 2.The Notice of Motion is anchored on the grounds set out therein and is supported by the Affidavit of Daniel Muthii Kinyua, the Applicant herein. It is contended that at all material times, the Applicant was an employee of the Respondent stationed at Kangaita Tea Farm in Kirinyaga County, until he sustained a work-related injury on 16th September 2021. 3.It is averred that, upon conclusion of the statutory process under the Work Injury Benefits Act (WIBA), the Director of Occupational Safety and Health (the Director) issued an award on 23rd November 2022 assessing the Applicant’s compensation at Kshs 1,821,141.60. 4.The Applicant avers that the Respondent neither lodged any objection nor appeal against the Director’s assessment within the statutory timelines provided under Section 52 of WIBA. Consequently, he contends that the said award has crystallised into a binding determination capable of enforcement by this Court. 5.It is further averred that despite several follow-ups and a formal demand, the Respondent has failed, refused and/or neglected to satisfy the Director’s award. 6.In response to the Notice of Motion, the Respondent filed a Replying Affidavit sworn on 6th March 2026 by David Munyua Gichuki, who describes himself as the Legal Officer of ICEA Lion General Insurance Limited, the Respondent’s insurer. 7.Mr. Gichuki deposes that the Applicant allegedly sustained injuries while at work on 16th September 2021 and lodged a complaint with the Director. He contends that the Respondent was not informed of the progress or outcome of the proceedings. 8.He further contends that there is no evidence of service of the outcome of the proceedings upon the Respondent, and as such, the Respondent did not file any response to the claim before the Director due to lack of proper or sufficient service. 9.Mr. Gichuki deposes that owing to the failure to notify or serve the Respondent with the outcome of the proceedings, the Respondent was deprived of the opportunity to lodge an objection within time or subsequently file an appeal against the Director’s award. 10.He avers that, on advice of the Respondent’s advocates, the award issued by the Director is irregular as due process was not followed to ensure participation of both parties and to afford the Respondent an opportunity to respond, object, or appeal the decision. 11.Mr. Gichuki further deposes, on advice of counsel, that this Court cannot enforce an award arising from proceedings in which due process was not observed or where a party was not accorded an opportunity to participate. 12.He states that the Respondent only became aware of the outcome of the proceedings before the Director upon service of the present Application. He further alleges that the Director overlooked several material inconsistencies in the Applicant’s records and documentation, pointing to a possible fraudulent claim, as was the case in the now withdrawn Nyeri Misc. Application No. E001 of 2026, Daniel Muthii Kinyua v Kangaita Tea Farm. 13.Mr. Gichuki avers that, on advice of counsel, the Applicant is not entitled to the reliefs sought as the Application is not made in good faith, given that the Respondent was allegedly not afforded an opportunity to defend the claim before the Director or to object and/or appeal the award as it would have wished. 14.He further states that the Respondent’s insurer appointed independent investigators who established that the Applicant was indeed at work on the date he alleges to have been injured and on the subsequent days thereafter. He further contends that the medical facilities the Applicant claims to have attended have no record of his visit during the relevant period and no treatment was administered to him. 15.In Mr. Gichuki’s view, the Applicant has not demonstrated sufficient grounds to warrant the orders sought, and the Respondent ought to be accorded an opportunity to respond to the claim before this Honourable Court can consider enforcement of the Director’s award. 16.The Respondent has further filed a Preliminary Objection dated 9th March 2026 in which it raises the following grounds: -a.That this Honorable Court lacks jurisdiction to adopt and enforce the decision of the Director of Occupational Safety and Health Services (DOSH) as the governing statute does not confer such jurisdiction upon this court.b.That the application offends the provisions of the Work Injury Benefits Act,2007 which provides that disputes arising from work injury compensation are to be determined by the Director and appeals therefrom lie to the Employment and Labour Relations Court.c.That the application is incompetent and bad in law as the Applicant has invoked the wrong procedure to enforce the alleged award.d.That the application is an abuse of the court process as it seeks to convert an administrative award into a court decree without statutory authority.e.That the entire application ought to be struck out with costs. 17.In a rejoinder, the Applicant filed a Further Affidavit dated 8th March 2026 in which he deposes that the Respondent and its insurer were duly apprised of the claim, its authenticity, and the award made, and cannot truthfully plead ignorance of the same. 18.He further avers that it was ICEA Lion General Insurance Company Limited that took steps to verify the claim by appointing Bycolne Accident and General Investigations ("the Investigator"). He adds that pursuant to that appointment, the Investigator formally addressed the Kirinyaga County Occupational Safety and Health Office by a letter dated 28th February 2025, seeking confirmation of the authenticity of the DOSH/WIBA3, DOSH/WIBA4 forms, together with the related documents forming part of the claim. 19.Mr. Kinyua further avers that Kirinyaga County Occupational Safety and Health Office responded to the investigator’s enquiry and confirmed the authenticity of the claim forms and related documents. 20.Mr. Kinyua maintains that on 16th September 2021, he was examined at Kimathi Medical Services, Kerugoya, where Dr. Kamau issued a sick-off form directing strict bed rest for five days to enable full recovery before resuming duty. He adds that in arriving at its award, DOSH expressly took into account his non-attendance at work for those five days and the lost working days were factored into the computation of compensation and incorporated in the total award, thereby affirming that the Director accepted and accounted for his absence from work 21.Mr. Kinyua avers that Misc. Application No. E001 of 2026 was withdrawn solely because the named Respondent, Kangaita Tea Farm, was not a body corporate capable of being sued. He maintains that the withdrawal was purely procedural and bore no relation to the merits of the claim. 22.He avers that he is guided by his Counsel on Record, which guidance he verily believes to be accurate, that this Honourable Court is divested of jurisdiction under these proceedings to entertain the factual merits of the parent claim as the only issue before this Court is the adoption of the DOSH award. 23.Mr. Kinyua further avers that Article 162(2)(a) of the Constitution, read together with Sections 12, 86 and 89 of the Employment and Labour Relations Court Act, 2007, vests this Court with jurisdiction over employment and labour relations matters, including enforcement of statutory awards under the Work Injury Benefits Act. That once the Director’s award crystallized (having not been challenged within statutory timelines), it became final and binding. Submissions 24.The Application was canvassed by way of written submissions. The court has paid due consideration to the submissions by both parties. Analysis and Determination 25.Having considered the Notice of Motion, the Respondent’s response, the Preliminary Objection, and the rival submissions, the Court distills the following issues for determination: -a.Whether this Court has jurisdiction to hear and determine the instant Notice of Motion;b.Depending on (a) above, whether the Notice of Motion is merited, and in particular whether this Court should adopt the award made on 23rd November 2022 by the Director. Jurisdiction of the Court to hear and determine the Motion 26.In its Notice of Preliminary Objection, the Respondent contends that this Court lacks jurisdiction to adopt and enforce the decision of the Director. 27.It is noteworthy that under the Work Injury Benefits Act, there is no express mechanism for the enforcement of an award issued by the Director against an unwilling employer. Confronted with a similar issue in Samson Chweya Mwendabole v Protective Custody Limited [2021] KEELRC 1809 (KLR), the Court held as follows: -“…There is a lacuna in law with respect to procedure for enforcement of the awards made by the Director under WIBA. However, this court being endowed with unlimited original and appellate jurisdiction in disputes related to employment and labour relations pursuant to Article 162(2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, I hold that it has the inherent jurisdiction to adopt as judgement the Director’s award for purposes of execution. This jurisdiction should not be confused with appellate jurisdiction which is expressly donated under section 52 (2) of the WIBA in respect of the Directors reply to objection made under section 51(1) of the WIBA.” Underlined for emphasis 28.And further, in the case of Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR), the Court reckoned thus:“As held in the cited case of Ruth Wambui Mwangi & another versus Alfarah Wholesalers Limited [2017] eKLR, upon Directorate of Occupational Safety and Health Services (DOSHS) making the work injury assessment under Occupational Safety and Health Act, 2007 on the award by the Director under WIBA, there is no enforcement mechanism and this being the court with mandate to address employment and labour relations claims and for connected purposes, the practice has been to file such claims under the provisions of section 89 of the Act as the Work Injury Benefits Act, 2007 read with the Occupational Safety and Health Act, 2007 do not outline the enforcement mechanism and procedures save to address work place injury assessment and award by the Director.” 29.A similar position was taken by the court in the case of Mwangata v Shyam General Merchants Limited (Cause E086 of 2024) [2025] KEELRC 616 (KLR) (16 January 2025) (Ruling) with the Court holding as follows:“Absent an objection and/or appeal by the respondent against the award dated May 30, 2023, this court’s jurisdiction to enforce the said award in the face of the respondent’s non-settlement of the same, has matured.” 30.More importantly, the Court of Appeal in Charles v Cheto [2025] KECA 784 (KLR) took a similar position and held as follows: -“As the learned Judge correctly observed, there is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes, and as provided for under sections 86 and 89 (formerly sections 87 and 90) of the Employment Act (Cap. 226).” Underlined for emphasis 31.This Court adopts the foregoing precedents and accordingly finds that it is vested with jurisdiction to enforce the award issued by the Director under the Work Injury Benefits Act. 32.With that being said, the Court now moves to determine the second issue. Merit in the Motion 33.The Respondent has contended that it neither participated in the proceedings before the Director nor was served with the outcome thereof, and that it only became aware of the award upon service of the present Motion. 34.In Charles v Cheto [2025] KECA 784 (KLR), the Court of Appeal upheld the trial Judge’s finding that Sections 51 and 52 of WIBA are silent on the remedies available to a party who becomes aware of proceedings before the Director after the statutory period for lodging an objection or filing an appeal has lapsed. The Court further concurred with the trial Judge that, in such circumstances, the appropriate course is to lodge a Motion for Judicial Review to quash the award before its adoption by the Court, while first seeking to stay the adoption proceedings. 35.As aptly observed by the Court of Appeal, the only available recourse for a party such as the Respondent, who alleges that it became aware of proceedings before the Director only after the award had been made and upon lapse of the statutory period for lodging an objection or filing an appeal, is to institute judicial review proceedings seeking to quash the Director’s award. 36.In light of the binding authority in Charles v Cheto (supra), it is evident that the Respondent’s assertion that it did not participate in the proceedings before the Director is of no relevance in the present proceedings, which are strictly limited to enforcement. 37.In the Cheto case (supra), the Court of Appeal held that the appellant, having failed to take steps to seek judicial review of the Director’s award, was misguided in attempting to frame the matter as a violation of his constitutional right to a fair hearing. Similarly, in the present case, this Court finds that the Respondent cannot properly raise issues relating to the Director’s alleged failure to follow due process and non-service. 38.In the absence of any appeal against the Director’s award, and the Respondent having not invoked the appropriate legal avenue as outlined above to challenge the Director’s award, this Court finds no basis upon which to decline the Applicant’s prayer for adoption of the said award. 39.Consequently, this Court finds that the Applicant is entitled to the sum of Kshs. Kshs 1,821,141.60 as assessed by the Director on 23rd November 2022. 40.The Court further awards interest on the said amount at court rates from the date of this Ruling until payment in full. 41.The Respondent shall also bear the costs of this Application. DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant Mr. KipyegonFor the Respondent Mr. MurokiCourt Assistant NdatiORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.