Mwiwawi v Moreflow Solutions Limited (Employment and Labour Relations Miscellaneous E043 of 2026) [2026] KEELRC 2021 (KLR) (25 June 2026) (Ruling)

Mwiwawi v Moreflow Solutions Limited (Employment and Labour Relations Miscellaneous E043 of 2026) [2026] KEELRC 2021 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 2021 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Miscellaneous E043 of 2026 K Ocharo, J June 25, 2026 Between George Mwamba Mwiwawi Applicant and Moreflow Solutions Limited Respondent Ruling 1.By a Notice of Motion application dated 23rd March 2026, the Applicant seeks the following orders;a.That this Honourable Court adopts the assessment of the Director of Occupational Safety and Health Services as a judgment of this Court.b.That a decree for KShs. 451,661.54 do issue in favour of the Applicant against the Respondent, in accordance with the assessment of the Director of Occupational Safety andHealth Services,c.That the costs of this application be provided for. 2.The application is predicated on the grounds set out on the face of the application and the supporting affidavit sworn by the Applicant, contemporaneously filed with the application. Discernible from the application and the said affidavit, the application is predicated on the following principal grounds;I.The Applicant was employed by the Respondent, Moreflow Solutions Limited, as an Operator at the Respondent's Kwale County operations during all relevant times.II.On August 6th, 2024, at 11:16 a.m., the Applicant sustained serious hand injuries while working for the Respondent, resulting in partial and permanent disability.III.That the Respondent reported the accident to the Director of Occupational Safety and Health Services, and a DOSH Form 1 was duly completed and submitted in accordance with the Work Injury Benefits Act.IV.That following the assessment of the Applicant's injuries, the level of permanent disablement was determined at 20% incapacity by the Director of Occupational Safety and Health Services.V.That the Director of Occupational Safety and Health Services issued a Demand Notice for Payment of Work Injury Benefit, bearing reference number WIBAfKWL/03109/2024Revised and dated 21st January 2025, assessing the total compensation due to the Applicant at Kshs. 451,661.54.VI.That the Applicant's advocates have duly served the Respondent with the Director's Demand Notice and assessment, and have made repeated demands for payment; however, no payment has been received to date.VII.That the Respondent has not lodged any appeal against the Director’s assessment within the prescribed statutory period of 60 days from the date of the assessment, and that the assessment is accordingly final, conclusive and binding upon the Respondent.VIII.Section 26(4) of the Work Injury Benefits Act stipulates that an employer against whom a claim for compensation is filed by the Director MUST resolve the claim as submitted, the term "SHALL" being obligatory and devoid of any discretion on the part of the Respondent. IX. THAT the Respondent's continued refusal and/or neglect to pay the assessed compensation has caused the Applicant and his family great hardship, the Applicant having also lost his employment consequent upon the said workplace injury and being unable to secure meaningful alternative employment.X.That it is in the interests of justice and equity that this Honourable Court adopts the Director's assessment as a judgment of this Court and issues the decree as prayed for, so as to give full and effective relief to the Applicant. 3.The Respondent opposed the application through an affidavit sworn by Moses Mutethia, its Director. It asserted that the Application is misconceived, incompetent, bad in law and an abuse of the court process and ought to be dismissed with costs. 4.It contended that, contrary to the Applicant's allegations, the Applicant was never its employee at any time. The Applicant was engaged and/or brought onto the project site by an independent contractor undertaking certain works and services at the site. 5.It was stated further that the said independent contractor retained control and supervision over the persons working under it, including the Applicant, and was responsible for:a.recruitment and engagement of workers;b.supervision and allocation of duties;c.payment of wages;d.statutory remittances; ande.occupational safety obligations in respect of such workers. 6.The Respondent asserted that, consequently, no contract of service ever existed between the Applicant and the Respondent capable of creating an employer-employee relationship within the meaning of the Employment Act and/or the Work Injury Benefits Act. 7.Additionally, while it is true that an accident occurred at the project site, the Respondent denies liability for the accident and further denies that the Applicant was injured in the course of employment with the Respondent. 8.The Respondent asserts that there was no employer-employee relationship between the Respondent and the Applicant; the Director of Occupational Health Services subsequently adjudicated the claim arising from the incident and granted a compensation amount to the Applicant 9.The Respondent alleged that following the accident, and purely on humanitarian and compassionate grounds and without admitting liability, it facilitated and/or substantially contributed to the Applicant's medical treatment and related expenses. 10.It incurred expenditure in excess of Kenya Shillings One Million, Two Hundred Thousand (Kshs. I,200,000] towards the Applicant’s treatment, hospitalisation, medication and other medical-related support. It follows, therefore, that if the award of Kshs. 48,461.54 is to be offset against the amount spent on his medical expenses, there is no valid claim. 11.The Applicant has deliberately failed to disclose to this Honourable Court the substantial medical assistance and financial support provided by the Respondent. 12.It is further asserted that, if any compensation were found payable (which is denied), it ought to take into account and/or be set off against the substantial medical expenses already incurred and paid by the Respondent. Analysis and Determination 13.I have carefully considered the application, the grounds upon which it is based, the affidavit in support thereof, and the Replying affidavit filed herein, and only a single broad issue arises for determination, whether the application is meritorious. 14.This Court notes that the Respondent consistently in its replying affidavit maintained that the Director of Occupational Safety and Health Services assessed and awarded the Applicant a sum of KShs. 48, 461. 544. I have carefully considered the Demand for Payment of Work Injury by the Director addressed to the Respondent, and note that the assessment of the Applicant’s disability as a result of the incident was done under two heads: Permanent Disablement and Temporary incapacity, with different awards made thereto, respectively. The amount mentioned by the Respondent is the award for Temporary incapacity. The cumulative amount was KShs. 451, 661.54. 15.The Respondent contended that the Applicant was not, at the material time or at anytime, its employee, but that of a third party to whom it had outsourced services at some site.Inexplicably, the Respondent did not name the third party or the project. This clearly points to one fact: there was no such party or site. The Applicant was at all material times an employee of the Respondent. 16.Time and again, this Court has stated that where the employer has not challenged the assessment and award of the Director in the manner provided for under Section 52 of the Work Injury Benefits Act, or in any other manner permitted by law, the Court would seldom decline an enforcement motion such as the instant one to facilitate the execution of the award, thereby concluding the process. 17.Undoubtedly, the Respondent did not challenge the assessment and award by the Director within the statutory period or at all. This Court has no justifiable reason not to allow the applicant’s application. 18.By reason of the premises, the Director’s award of KShs. 451, 661.54 is hereby adopted as a judgment of this Court. The sum shall attract interest at court rates from the date of award till full payment. Costs of the Application shall be for the Applicant. READ, SIGNED AND DELIVERED THIS 25TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE