https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1881

Ngura v Airview Services Ltd (Employment and Labour Relations Miscellaneous E108 of 2026) [2026] KEELRC 1881 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1881 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Miscellaneous E108 of 2026 HS Wasilwa, J July 1, 2026 Between Julius Mutui Ngura Applicant and Airview Services Limited Respondent Ruling 1.The Applicant filed a Notice of Motion application dated 10th February 2026 seeking orders: -1.That the decision by the Director of Occupational Safety and Health Services rendered on 10th April, 2025 awarding the Applicant a sum of Kshs. 92,000.00/- as against the Respondent be adopted as a judgment of the court.2.That interest on the sum of Kshs. 92,000.00/- be awarded at the rate of 14% per annum from 10th April, 2025.3.That the Applicant be awarded the costs of this application Applicant’s Case 2.The Applicant avers that he was employed by the Respondent as a night security guard from September 2014 to September 2024. 3.He avers that in or about April 2024, he sustained injuries in the course of his employment while pursuing thieves and received medical assistance at Kalimoni Mission Hospital and St. Mathias Mulumba Hospital. Subsequently, the injury was duly reported and processed under the provisions of the Work Injury Benefits Act. 4.The Applicant further avers that on 10th April 2025, the Director of Occupational Safety and Health Services assessed his work injury benefits at Kshs. 92,000. However, despite notification of the assessment, the Respondent has failed, refused and/or neglected to settle the assessed amount, prompting the filing of the present application. 5.He asserts that the Respondent neither objected to nor appealed against the Director’s decision. 6.The Applicant states that following the injury, he resigned from the Respondent’s employment upon medical advice, but Respondent failed to pay his terminal dues, necessitating the filing of Ruiru ELRC Cause No. E075 of 2025, which culminated in a judgment delivered on 22nd August 2025 in his favour for Kshs. 301,059. 7.It is the Applicant’s case that throughout his employment, his salary was paid through his Family Bank account. He thus denies having received the alleged payments of Kshs. 8,500 in the months of May, June, July and August 2024 as claimed by the Respondent and puts the Respondent to strict proof thereof. 8.He further contends that, in any event, the Court in its judgment of 22nd August 2025 found that he had been underpaid throughout his employment and that his lawful monthly salary for the year 2024 ought to have been Kshs. 15,722.60. Respondent’s Case 9.In opposition to the application, the Respondent filed a replying affidavit dated 31st March 2026, sworn by Henry Mwangi, its Managing Director 10.It is the Respondent’s case that it is not disputed that the Applicant sustained injuries in the course of his employment in or about April 2024 and that the matter was duly reported to the Director of Occupational Safety and Health Services (DOSH). 11.The Respondent states that DOSH assessed and awarded the Applicant a total sum of Kshs. 92,000, comprising Kshs. 58,000 as compensation for the injury and Kshs. 34,000 for temporary incapacity covering four months. It asserts that the sum of Kshs. 34,000 represented salary for the months of May, June, July and August 2024 at Kshs. 8,500 per month during the period the Applicant was away from work on account of the injuries sustained. 12.The Respondent further avers that upon the Applicant’s retirement from employment, it computed and tabulated his final dues on 23rd September 2024 and duly factored in and paid the sum of Kshs. 34,000 as part of those dues.; which payment is not contested and was lawfully settled. 13.It states that in or about April 2025, it issued and forwarded a cheque for Kshs. 58,000 to the Director of Occupational Safety and Health Services for onward transmission to the Applicant as compensation for the injury. 14.It asserts that the Applicant has failed, refused and/or neglected to collect the cheque despite being notified and afforded an opportunity to do so. 15.The Respondent further contends that DOSH expressly clarified that where an employer has already paid the temporary incapacity amount of Kshs. 34,000, the employee is not entitled to receive the same amount again. It therefore argues that the Applicant is not entitled to any further payment in respect of the Kshs. 34,000, the same having been fully settled, and that any further claim thereto would amount to unjust enrichment. 16.It is the Respondent’s case that it remains ready, willing and able to settle the sum of Kshs. 58,000 being compensation for the injury and has at all material times acted in good faith. 17.It further contends that the Applicant’s claim for interest is misconceived and without merit as any delay in payment was occasioned solely by the Applicant’s refusal to collect the cheque and not by any default on its part. 18.The Respondent consequently asserts that the present Application is misplaced, frivolous and an abuse of the court process and urges the Court to dismiss it with costs. Applicant’s Submissions 19.It is the Applicant’s submissions that the sole issue for determination is whether the application is merited. 20.The Applicant submitted that the Respondent contends that out of the sum of Kshs. 92,000 awarded by the Director of Occupational Safety and Health Services, it has already paid Kshs. 34,000 to the Applicant, leaving a balance of Kshs. 58,000. The Applicant argued that he has consistently denied receiving the alleged payment of Kshs. 34,000. 21.The Applicant further submitted that the Respondent has, in effect, conceded to the application to the extent that it admits indebtedness to the Applicant in the sum of Kshs. 58,000, which remains unpaid despite the award having been made in April 2025. 22.On the disputed sum of Kshs. 34,000, the Applicant relied on Section 107 of the Evidence Act, Cap. 80, which provides: “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Therefore, he submitted that the burden of proving payment rested upon the Respondent and that the Respondent failed to discharge that burden. 23.He argued that the Respondent asserted that the Kshs. 34,000, allegedly comprising salaries for the months during his incapacity, was computed and paid together with his terminal dues on 23rd September 2024, the tabulation relied upon by the Respondent shows that some of the alleged payments was instead been discounted from the terminal dues payable. 24.The Applicant submitted that throughout his employment, all salary payments were made through his Family Bank account and had the alleged payments been made, the Respondent could easily produce bank statements or other documentary evidence evidencing the transfer of the funds. He argued that no such evidence has been tendered and consequently the Respondent has failed to prove that the sum of Kshs. 34,000 had been paid and ought to be deducted from the Director’s award. 25.It was further submitted that deducting the sum of Kshs. 34,000 from the award in the absence of proof of payment would amount to interference with the Director’s award. The Applicant argued that the Court lacks jurisdiction to vary or interfere with such an award except in the exercise of its appellate jurisdiction under Section 52 of the Work Injury Benefits Act. 26.In support of this position, reliance was placed on Mutuku v Excel Chemicals Limited [2025] KEELRC 1035 (KLR), where the Court addressed the scope of the Court’s jurisdiction in relation to awards made by the Director under WIBA. 27.On the Respondent’s admitted liability for Kshs. 58,000, the Applicant submitted that the Respondent took contradictory positions in its Replying Affidavit. He argued that whereas at paragraph 8 the Respondent alleged that it had already issued a cheque for the amount, however, at paragraph 12 it averred that it remained ready and willing to pay the same. 28.It is the Applicant’s submission that these contradictory positions demonstrate that the Respondent had knowledge of the award but has deliberately failed, refused and/or neglected to settle the amount due. 29.I have examined all the averments and submissions of the parties herein. The gist of this application rests on whether the respondents have paid the kshs 92,000/- awarded to the applicant or not. 30.The respondents aver that they are willing to pay kshs 58,000/- and not the entire amount having paid kshs 34,000/- to the applicant when they paid his terminal dues. 31.Despite this averment, the respondents have not submitted any evidence that they paid the kshs 34,000/- as expected in an application of this nature and as per the Evidence Act as submitted herein. Without any evidence to the contrary and the award having been made, I allow the application and direct the respondents to forthwith pay the applicants kshs 92,000/- plus interest at court rates with effect from the date the award was issued on 10/4/2023 by the Dosh. 32.The respondents will also pay costs of this application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 1ST DAY OF JULY, 2026.HELLEN WASILWAJUDGE