Wafula alias Mohamed v Robamach Building & Construction Co. Ltd (Cause E009 of 2025) [2026] KEELRC 1883 (KLR) (25 June 2026) (Ruling)

Wafula alias Mohamed v Robamach Building & Construction Co. Ltd (Cause E009 of 2025) [2026] KEELRC 1883 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1883 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Cause E009 of 2025 DN Nderitu, J June 25, 2026 Between James Wamalwa Wafula alias Mohamed Applicant and Robamach Building & Construction Co. Ltd Respondent Ruling I. Introduction 1.The Applicant, through B. M. Ouma & Co. Advocates, filed a Notice of Motion (the application) dated 2nd April 2025 seeking for the following orders –1.Spent.2.That the honourable court be pleased to adopt the award of the director of occupational safety and health services made in Work Injury Benefits Act claim Ref No. WIBA/BUG/230/2024 made on 20/09/2024 as a judgment of this court.3.That the judgement be entered in favour of the applicant against the respondent of Kshs933,100/=, being the sum assessed by the Director of Occupational Safety and Health Services, and under the Work Injury Benefit Act on 20/09/2024 in claim reference No. WIBA/BUG/230/2024.4.That the honourable court be pleased to award interest on the amount of court rates from the date of assessment until payment in full.5.That cost of the application be provided for. 2.The application is expressed to be brought under Section 12 of the Employment and Labour Court Act, Section 1A, 1B and 63(a) of the Civil Procedure Act, Cap 21 of the Laws, Order 2 Rule 51 of the civil Procedure Rules 2010; and Section 16, 30, 32, 34, 37 and 51 of the Work Injury Benefits Act, and, all other enabling provisions of law. 3.The application is based on the grounds on the face of it and supported with the affidavit of the Applicant, sworn on even date, with several annexures thereto. 4.The Respondent did not appear or respond to the application but the court is satisfied that it was duly served as per the affidavit of service on record. 5.The court directed that the application be canvassed by way of written submissions. Mr Barasa for the Applicant filed written submissions dated 10th October 2025. II. The Evidence 6.In the supporting affidavit, it is deponed that the Applicant was employed by the Respondent as a carpenter in 2022 and on 31st August 2022, while he was working at a construction site, a heavy metal used in supporting concrete struck him, causing injuries to his head, neck, chest, ankle, and knee. He deposes that he was treated at Busia County Referral Hospital and later reported the accident to the relevant authorities. He contends that despite demands and requests to facilitate the processing of compensation under the Work Injury Benefits Act (WIBA), the Respondent failed to cooperate, necessitating intervention by the Directorate of Occupational Safety and Health Services (DOSH). 7.Following assessment of his injury, the DOSH issued an award dated 20th September 2024 assessing compensation at Kshs933,100/= that remains unpaid. 8.The Applicant further states that he had previously filed Bungoma ELRC Petition No. E009 of 2023 against the Respondent in an action arising from the same accident. In a ruling delivered on 11th December 2023 the Court (Keli J) held that disputes relating to compensation for work injuries fall within the statutory framework established under WIBA and that the DOSH has primary jurisdiction to investigate and determine such claims. The Petition was consequently dismissed for want of jurisdiction, with the Court directing that the statutory procedure under WIBA be followed. 9.Subsequently, the Applicant pursued the claim with DOSH resulting in the award dated 20th September 2024. DOSH awarded compensation for permanent incapacity and related entitlements amounting to Kshs933,100/=. The Applicant now seeks enforcement of that assessment on the ground that the Respondent has failed, refused, and or neglected to satisfy the award despite demand. 10.The issue for determination, therefore, is whether the Court should adopt and enforce the award as made by DOSH and enter judgment in favour of the Applicant for the assessed sum together with interest and costs. III. Submissions 11.The applicant’s counsel submitted on two issues – Whether the Employment and Labour Relations Court had the jurisdiction to issue enforcement orders for the awards by the Director of Occupational Safety and Health Services; and, What was the effect of failure to file an objection or an appeal against an award by the Director of Occupational Safety and Health Services within the Statutory timelines. 12.On the first issue, counsel submitted that although WIBA does not expressly provide for a procedure for enforcing an award by DOSH, the Employment and Labour Relations Court (ELRC) has jurisdiction to issue facilitative enforcement orders to prevent successful claimants from being left without a remedy. To buttress this position, counsel relies on the provisions of Articles 10, 41 and 48 of the Constitution, section 12 of the Employment and Labour Relations Court Act, Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 13.Further counsel cited Elijah Kisyanga Ndende v The Manager Zahkem International Construction Ltd [2022] eKLR and Samson Chweya Mwandahole v Protective Custody Limited [2021] eKLR, wherein the Court held that the ELRC has inherent jurisdiction to adopt a DOSH award as a judgment of the Court for purposes of execution where no objection or appeal has been lodged under Sections 51 & 52 of WIBA. 14.Counsel further cited Joash Shisia Cheto v Thepot Patrick Charles [2022] eKLR in which the Court observed that although WIBA does not provide for a mechanism for enforcement of awards by DOSH, a successful claimant may move the ELRC for enforcement and that, absent an appeal under section 52 of WIBA, the Court should not interrogate the merits of the Director's findings. 15.Counsel submitted that since the Respondent did not challenge the award through the mandatory statutory objection and appeal process, the Court's jurisdiction in enforcing the award has crystallised. The Applicant urges the Court to adopt the award of Kshs933,100/= as a judgment of the Court and award interest and costs. IV. Issues For Determination 16.The factual background leading to this application has been set out by the Applicant and his counsel as per the summary in the preceding parts of this ruling. The gist of the application is that the Applicant was awarded by DOSH as alluded to above, yet the Respondent has neither settled the award nor made acceptable or reasonable proposals on the settlement of the same. It is also not in dispute that the Respondent neither objected to the award nor appealed the same. Likewise, the Respondent did not object to this application. 17.Upon the court considering the evidence availed by the Applicant and the arguments advanced in submissions by his counsel, the following issues commend themselves to the court for determination –a.Whether the Respondent is liable for the settlement of the award of Kshs933,100/= plus interest thereon from the date of assessment till payment in full.b.Who bears the costs of this application? V. Adoption 18.The Applicant availed in court a copy of the award by DOSH (DOSH/WIBA/4) and a demand for payment, both dated 20th September 2024. Legally, the award of Kshs933,100/= is due and payable to the Applicant by the Respondent.VI.Ordersi.The Notice of Motion by the Applicant dated 2nd April 2025 is hereby allowed as hereunder –a.The award of Kshs933,100/= made by the Director is hereby adopted, and judgment entered therefor in favour of the Applicant against the Respondent.b.The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.c.Costs of the application to the Applicant.d.A decree shall issue accordingly. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA