https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1657

Waweru v Eldoret Exprss Company Limited (Miscellaneous Application E046 of 2025) [2026] KEELRC 1657 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1657 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Miscellaneous Application E046 of 2025 MA Onyango, J June 12, 2026 Between Johana Mutuota Waweru Applicant and Eldoret Exprss Company Limited Respondent Ruling 1.Vide an application dated 19th September, 2025, the Applicant seeks the following orders:i.That the application be certified as urgent and the same be heard on a priority basis.ii.That the Honourable court be pleased to order the respondent to forthwith pay the applicant a sum of Ksh. 1,475,541/= as assessed and awarded by the Directorate of occupation health and safety under the Work Injury Benefits Act (WIBI) 2007 in an award dated 20th May 2025.iii.That the costs of this cause be borne by the Respondent in any event. 2.The application is supported by the grounds on the face thereof and the supporting affidavit of Johana Mutuota Waweru, the Applicant in which he states that:a.That the applicant was in the respondent's employment when he sustained very severe work related injuries.b.That the injury was recorded by the respondent and the requisite documents from the Directorate of Occupation Health and Safety Services were duly obtained and calculations of compensation for the said injury was made and an award made on 20th May 2025.c.That despite numerous remaindered by the Directorate of Occupation Health and Safety Services to the respondent to honour the award herein, the respondent has remained adamant rendering these enforcement proceedings necessary.d.That the total award payable to the applicant was assessed and awarded by the Directorate of Occupation Health and Safety Services at a sum of Kshs 1,475,541/= on 20th May 2025 calculated as hereunder: -Kshs. 32,080/=(monthly Total Earning) x 96 months x 40% Disablement divided by 100 = Kshs 1,231,872/=Kshs. 32.0801= (Total month) earning) x 226 Days divided by 30 = Kshs. 241,669/=e.That this honourable court is espoused with jurisdiction to issue enforcement orders in respect of awards made by the Directorate of Occupation Health and Safety Services.f.That the applicant's claim against the respondent has already been proved and an award made by the relevant institution and these proceedings are purely for enforcement of the said award.g.That the applicant is in dire state of health requiring urgent enforcement orders to enable him seek medication using funds arising from the award herein.h.That time frames for any appellate proceedings by the respondent respecting the said award have long lapsed and what remains is honouring the said award. 3.The Respondent opposed the application through a replying affidavit of Joseph Ng’ang’a Thung’u, one of the Directors of Eldoret Express Company Limited, sworn on 27th October, 2025. 4.Mr. Thung’u admits that as at 27th September, 2024 Johana Mutuota Waweru, the Applicant, was employed by the Respondent as a bus driver when he was involved in a road accident. 5.Mr. Thung’u however deposes that the Respondent was not aware that an award had be made by the County Occupational Health and Safety Office as it was never served with a notice of the said award or any documents from the County Occupational Health and Safety Office and only became aware of the same after being served with the application herein. 6.He further deposes that the County Occupational Health and Safety Officer did not serve the Respondent with the DOSH/WIBA 4 form after the assessment and as such it was impossible to raise an objection to the assessment within the stipulated time frame because it was unaware of the same. 7.It is further deposed that there is no explanation as to how the County Occupational Safety and Health Officer arrived at the Applicant suffering 40% permanent disablement as the same was not assessed in the P3 form annexed to the supporting affidavit as the DOSH/WIBA 4 form has not been availed. 8.Further, that there is inconsistency in the Applicant's documents e.g his NSSF statement of accounts indicates he is 66 years old while the Discharge summary from Nakuru County Referral and Teaching Hospital indicates that he is 72 years old, while the P3 form indicates that he is 57 years old. 9.Mr. Thung’u deposes that in the Applicant's supporting affidavit, the annexure marked 'JMW 111a' does not show how the letter dated 5th June, 2025 was served upon the Respondent. 10.It is deposed that granting the orders sought in the Applicant's application will be prejudicial to the Respondent as it was never afforded the opportunity to participate in the stages of assessment for compensation which were held at the County Occupational Health and Safety Office at Eldoret or the opportunity to appeal against the award of the County Occupational Safety and Health Officer as it was not served with dates and/or appointments to appear before the County Occupational Safety and Health Offices or the award being sought to be adopted as an order of this court. 11.The application was disposed of by way of written submissions. Both parties filed and exchanged submissions. The Applicant’s submissions are dated 31st October, 2025 while the Respondent’s are dated 8th December, 2025. Analysis and Determination 12.I have considered the application, the affidavits in support and opposition to the application and the rival submissions. The issue arising for determination is whether the court should adopt the award of the Director as a judgment of this court for purposes of execution by the Applicant. 13.According to the assessment done by the Director, the assessment at 40% permanent disability which translates to Kshs. 1,231,872 is based on the Applicant’s monthly salary of Kshs. 32,080. The Director further assessed payment of Kshs. 241,669 in respect of earnings during the 226 days when the Applicant was incapacitated and not earning salary. The total due according to the assessment is thus Kshs. 1,475,541. 14.The Respondent contests the assessment and avers that it was not served and was therefore not aware about the assessment. That for that reason it was not able to object or appeal against the assessment within the prescribed timelines set out in the Act which have since lapsed. 15.The Applicant on his part submits that he is entitled to compensation, that the Respondent was aware of the accident and that the issue of his age is not relevant to the payment of compensation. 16.Adoption of an award of compensation is supposed to be a straightforward exercise. The court must however ensure that there was an accident, that the Applicant was an employee of the Respondent at the time of accident and that the nature of injuries as stated in the documents filed in court are sufficient to enable the court to confirm that the assessment has been done in accordance with the schedules in the Act. 17.The report of an accident is typically done through L.D. Form 104/1 (r. 3) Notice By Employer of Accident Causing Injury to, or Death of, A Workman. 18.The form contains all the relevant information such as the date of accident, the nature of injury, the treatment, the salary, whether or not salary was paid during the period of disability or sickness and all the other relevant and necessary information. 19.In the present case the said form was not filed. Instead the Applicant filed a Discharge Summary from the Hospital and a P3 Form which do not give the proper details required for assessment of permanent incapacity. The court is further not able to discern the nature and degree of the injuries and permanent incapacity from the documents filed to ensure conformity with the First Schedule on Degree of Disablement in the Act on levels of compensation based on degree of injury. 20.Furthermore, the Respondent does not appear to have been involved in the whole process and was only informed of the assessment after the fact. The Act gives the employer a right to contest the assessment if in its opinion it is not accurate. 21.There are also other discrepancies in the documents filed that raise doubts as to whether the process was done in the proper manner. 22.The Respondent does not deny that the Applicant was its employee or the occurrence of the accident. What it contests is the manner in which the assessment was processed and the accuracy of the same. 23.For the foregoing reasons I decline to adopt the assessment as filed. Instead I direct that the process be carried out afresh starting with the filling of L.D. FORM 104/1 which the Respondent is directed to obtain and process within 14 days from the date of this ruling. 24.The case will be mentioned in 30 days to confirm compliance and to adopt the assessment as will be done based on L.D. Form 104/1. 25.A copy of this ruling will be served upon the Director, personal, to enable him follow up on proper compliance. DATED, DELIVERED AND SIGNED ON THIS 12TH DAY OF JUNE 2026.M. ONYANGOJUDGE