https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2025

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC MISC. APP NO. E110 OF 2025** **DEODA WAFULA WANYONYI………………………………………………..….APPLICANT** **VS** **HANDYMAN STAFFING SOLUTIONS LIMITED……………………...RESPONDENT** **RULING** **Background** 1. By a Notice of Motion Application dated 24th September 2025, brought under Articles162(2) and 159(2)(d) of the Constitution, Sections 3 and 12 of the Employment and Labour Relations Court Act, Rules 69 and 73 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and Sections 86 and 87 of the Employment Act, the Applicant, DEODA WAFULA WANYONYI, seeks orders that this Honourable Court be pleased to adopt as judgment of the Court, and thereby enforce, the award/assessment of the County Occupational Safety and Health Officer, Mombasa, dated 17th January 2024, in the sum of Kshs. 294,415.00, together with interest thereon from 17th January 2024 until payment in full, and costs of the Application. 2. The Application is premised on the grounds set out on its face and on the Supporting Affidavit of the Applicant sworn on the even date. It is the Applicant's case that he was employed by the Respondent as an electrician deployed at Devki Steel Limited, Miritini, Mombasa County, and that on 29th June 2022 he sustained injuries in the course of that employment when a crane crashed his right hand, occasioning the loss of two phalanges of his ring finger and the whole of his little finger. The accident was duly reported to the County Occupational Safety and Health Office, Mombasa, on 14th July 2022, and on 17th January 2024 the County Occupational Safety and Health Officer assessed his permanent incapacity at ten per cent (10%) and the compensation payable to him under the Work Injury Benefits Act, 2007 at Kshs. 294,415.00, as evidenced by the DOSH/WIBA 4 Form. 3. The Applicant avers that the said DOSH/WIBA 4 Form was, on the same 17th January2024, personally delivered by him to the Respondent's premises and duly received by one Dennis Nyangaresi, the Respondent's Station Supervisor; that the Respondent neither objected to the assessment nor settled the sum awarded within ninety (90) days as required by law; that the County Director of Occupational Safety and Health thereafter, by a letter dated 7th August 2024, reminded the Respondent to settle the award or furnish reasons for its failure to do so within twenty-one (21) days, which period lapsed without compliance; and that a Demand Letter dated 13th August 2025, served upon the Respondent on the same date, similarly went unheeded. The Applicant contends that the Respondent's wilful and unjustified refusal to settle an award it never contested entitles him to the orders sought, together with interest from 17th January 2024 and costs. **The Respondent's Opposition** 1. The Respondent opposed the Application vide Grounds of Opposition dated 7th November2025, contending, in summary: that the Application is incompetent, misconceived, frivolous, vexatious and an abuse of the process of the Court; that the DOSH assessment was never served upon it, thereby denying it the sixty (60) day window within which to lodge an objection; that its right to fair administrative action under Article 47 of the Constitution was breached for want of a hearing; that it was never accorded an opportunity to obtain a second medical opinion; that the sum awarded is unjust and manifestly excessive; and that this Court, in any event, lacks jurisdiction to enforce awards of the Directorate of Occupational Safety and Health Services, relying on Lameck Nyakundi Anyona v WJJ Kenya Construction Co. Ltd [2022] eKLR. The Respondent prayed that the Application be dismissed with costs, and that the matter be remitted to DOSH for reassessment and a hearing on the merits. Submissions 1. Learned Counsel for the Applicant filed written submissions framing three issues for determination: whether this Court has jurisdiction to grant the orders sought; the effect of the Respondent's failure to file a Replying Affidavit; and whether the Applicant's prayers are merited. Counsel submitted that the decision in Lameck Nyakundi Anyona (supra) reflected an unsettled position on jurisdiction that has since been authoritatively resolved in the Applicant's favour by this Court in Mwangata v Shyam General Merchants Limited [2025] KEELRC 616 (KLR), and thereafter by the Court of Appeal in Charles v Cheto [2025] KECA 784 (KLR), which confirmed that the Employment and Labour Relations Court is the only court clothed with jurisdiction to adopt and enforce awards of the Director for purposes of enforcement. Counsel further submitted that the Respondent's failure to file a Replying Affidavit rendered the averments in the Applicant's Supporting Affidavit uncontroverted and therefore to be taken as true, relying on Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited [2010] eKLR and Mustano Rocco v Aniello Sterelli [2019] eKLR. Finally, Counsel submitted that it being undisputed that the Respondent never objected to or appealed the Director's award, the Applicant had, applying Mwangata (supra), sufficiently demonstrated entitlement to the orders sought. 2. The Respondent, for its part, maintained in its written submissions that jurisdiction cannot be assumed and flows only from the Constitution and statute, citing Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR for the proposition that a court which lacks jurisdiction must down its tools, and reiterated its reliance on Lameck Nyakundi Anyona (supra). It further submitted that the DOSH assessment, having been arrived at without service upon it and without affording it an opportunity to object or to procure a second medical opinion, offended Article 47 of the Constitution and was accordingly unreasonable, unjust and excessive, warranting remission to DOSH for a fresh hearing on the merits. Analysis and Determination 1. I have carefully considered the Notice of Motion Application, the Supporting Affidavit, the Respondent's Grounds of Opposition, the rival written submissions, and the authorities relied upon by both parties. Three issues fall for determination: first, whether this Court has jurisdiction to entertain and grant the orders sought; second, what effect, if any, attends the Respondent's failure to file a Replying Affidavit; and third, whether, on the material before the Court, the Applicant has made out a case for the adoption and enforcement of the Director's award. **(a) Whether this Court has jurisdiction** 1. The Respondent's challenge to jurisdiction, anchored on Lameck Nyakundi Anyona v WJJKenya Construction Co. Ltd [2022] eKLR, must be assessed against the more recent and, with respect, more settled state of the law. In Mwangata v Shyam General Merchants Limited [2025] KEELRC 616 (KLR), this Court held that “a purposive reading of rule 69 of this Court’s Procedure Rules, will reveal that this court has jurisdiction to entertain an application such as the instant application and render itself on the same.” That position was, on 5th May 2025, affirmed by the Court of Appeal in Charles v Cheto [2025] KECA 784 (KLR), a binding decision confirming that the Employment and Labour Relations Court is the only court with jurisdiction to adopt awards of the Directorate of Occupational Safety and Health Services for purposes of enforcement. 2. Read together with Rules 69 and 73 of the Employment and Labour Relations Court(Procedure) Rules, 2024, Sections 3 and 12 of the Employment and Labour Relations Court Act, and Articles 162(2) and 159(2)(d) of the Constitution, I find no basis to depart from the settled position in Mwangata (supra) and Charles (supra). The Work Injury Benefits Act, 2007, seventeen years after coming into force, still makes no express provision for the mechanism of enforcing an unassailed award of the Director; it cannot have been the intention of the Legislature that an award lawfully made, and never objected to or appealed, should remain a dead letter for want of a forum to enforce it. This Court, being the court with exclusive jurisdiction over employment and labour relations disputes, is properly seized of jurisdiction to entertain this Application. The objection to jurisdiction accordingly fails. (b) Effect of the Respondent's failure to file a Replying Affidavit 10. It is common ground that the Respondent did not file a Replying Affidavit to controvert the factual averments in the Applicant's Supporting Affidavit, opting instead to rely solely on Grounds of Opposition. It is well established, as held in Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited [2010] eKLR, that grounds of opposition address only issues of law and cannot, on their own, controvert sworn factual averments; where a respondent fails to file a replying affidavit, the applicant's averments are taken as true. This principle was reaffirmed in Mustano Rocco v Aniello Sterelli [2019] eKLR, with the caveat that the Court retains discretion to decline the orders sought where the applicant's own averments fall short of the legal threshold required. Applying these principles, the factual narrative set out in the Applicant's Supporting Affidavit, including the assessment of 17th January 2024, its delivery to and receipt by the Respondent's Station Supervisor on the same date, and the subsequent history of demands and non-payment, stands unrebutted and is accepted by this Court as true. (c) Whether the Applicant's prayers are merited 1. Section 51 of the Work Injury Benefits Act, 2007 entitles a person aggrieved by a decision of the Director to lodge an objection with the Director within sixty (60) days of that decision, while Section 52 of the Act sets out the mechanism by which the Director responds to any such objection and the aggrieved party's consequent right of appeal. It is undisputed on the record, and indeed unrebutted in the absence of a Replying Affidavit, that the Respondent received the DOSH/WIBA 4 Form through its Station Supervisor, Dennis Nyangaresi, on 17th January 2024, that it was thereafter reminded by the County Director of Occupational Safety and Health, by a letter dated 7th August 2024, to settle the award or explain its non-payment, and that it neither lodged an objection with the Director nor pursued the appeal contemplated under Section 52 of the Act within the timelines prescribed by law, nor at all. The award of 17th January 2024 has, in consequence, never been objected to or appealed as contemplated under the Act, and it stands as a final and unassailed determination of the Director. 2. This Court is guided by its own holding in Mwangata (supra), that “absent an objection and/or appeal by the respondent against the award... this court's jurisdiction to enforce the said award in the face of the respondent's non-settlement of the same, has matured.” The Respondent's belated protestations before this Court — that it was never served with the assessment, that it was denied an opportunity to procure a second medical opinion, that the sum awarded is excessive, and that its right to fair administrative action under Article 47 was violated — are precisely the species of complaint that this Court, in Mwangata (supra), held to be irrelevant to enforcement proceedings, in which “the court's authority is limited and does not extend to the examination of merits and or consideration of the propriety of the process leading to the award.” The Court of Appeal, in Charles v Cheto (supra), was to the same effect, holding that such grievances, including an allegation of a denial of the right to a fair hearing, “can only find relevance in an appeal contemplated in section 52(2) of the WIBA by way of judicial review of the Director's decision,” and that a party who fails to pursue those remedies despite the opportunity to do so cannot resist enforcement of the award on those grounds. 3. I am further not persuaded by the Respondent's bare assertion of non-service. It is not without significance that the Respondent's own Safety Officer, Oliver Nyamolo, is averred, without rebuttal, to have engaged directly with the Applicant in August 2025 concerning his treatment records, and that a Respondent officer identified as Fred is averred to have informed the Applicant, upon receipt of the Demand Letter, that his compensation was pending processing by their insurer. That conduct, taken together with the Respondent's silence in the face of the letter of 7th August 2024 and the Demand Letter of 13th August 2025, sits uneasily with a claim of ignorance of the award and lends no credence to the assertion that the Respondent was condemned unheard. In any event, whatever grievance the Respondent harboured against the process leading to the award fell to be ventilated through objection and appeal under Sections 51 and 52 of the Work Injury Benefits Act, or by way of judicial review, and not by way of resistance to these enforcement proceedings. 14. The reliance placed by the Respondent on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, while a correct statement of the general principle that jurisdiction flows from the Constitution and statute and cannot be assumed, does not avail it; for the reasons already given, this Court's jurisdiction to entertain and determine this Application is properly and lawfully founded. Similarly, the decision in Lameck Nyakundi Anyona (supra), decided in 2022 at a time when the jurisprudence on this question remained unsettled, must yield to the subsequent and binding pronouncement of the Court of Appeal in Charles v Cheto (supra). 4. In the result, I find that the Applicant has sufficiently demonstrated the existence of the award of the County Occupational Safety and Health Officer, Mombasa, dated 17th January 2024; that the said award has not been assailed by way of objection or appeal, or in any other manner provided for under the law; and that the Respondent has, without justifiable cause, failed to settle the same to date. The Applicant is accordingly entitled to the orders sought in his Notice of Motion Application dated 24th September 2025. **Determination and Orders** 1. In the upshot, I find no merit in the Respondent's opposition, and I make the following orders: - 2. The Notice of Motion Application dated 24th September 2025 be and is hereby allowed. 3. The award of the County Director of Occupational Safety and Health, Mombasa, dated17th January 2024, in the sum of Kshs. 294,415.00 in favour of the Applicant, DEODA WAFULA WANYONYI, be and is hereby adopted as judgment of this Court. 4. The Applicant shall have interest on the said sum of Kshs. 294,415.00 at court rates, being simple interest with effect from 17th January 2024 until payment in full. 5. The costs of this Application shall be borne by the Respondent. It is so ordered. **READ, DELIVERED AND SIGNED THIS 25TH DAY OF JUNE 2026.** **OCHARO KEBIRA** **JUDGE**