https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1552

Riungu v Zhonghao Overseas Construction Engineering (Miscellaneous Application E008 of 2025) [2026] KEELRC 1552 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1552 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Meru Miscellaneous Application E008 of 2025 SC Rutto, J June 4, 2026 Between Julius Mwenda Riungu Applicant and Zhonghao Overseas Construction Engineering Respondent Ruling 1.The Applicant herein, Julius Mwenda Riungu, has moved this Court by way of a Notice of Motion dated 12th May 2025 seeking the following orders: 1.That the court be pleased to adopt as Judgment of the Court the award of the Director of Occupational Safety and Health Services (Nairobi) made on 28th November, 2024. 2.That a decree do issue for: -a)The sum of Kshs.1,526,675.00 being the Director’s award/assessment made on 28th November 2024.b)Compound interest thereon at court rates from the date of the award (28th November 2024) until payment in full.c)That the cost of this application be borne by the Respondent. 2.The Notice of Motion is premised on the grounds set out therein and is supported by the Affidavit of Julius Mwenda Riungu, the Applicant herein. 3.Mr. Mwenda deposes that he was employed by the Respondent as a mason and that on 16th November 2023, he sustained injuries in an accident which resulted in permanent disability. He states that although he underwent medical treatment, he has not made a full recovery. 4.He further avers that the matter was reported to the Directorate of Occupational Safety and Health Services (the Director), which assessed his permanent incapacity at 75% and quantified compensation payable at Kshs. 1,526,675.00. 5.Mr. Mwenda further states that the Regional Occupational Health and Safety Office (Meru) duly served the Respondents with the Director’s assessment, but no payment has been made to date. 6.He further avers that the Respondent did not lodge any appeal against the Director’s decision within the time prescribed by law, but instead engaged its insurer, Heritage Insurance, to process the claim. The Applicant contends that despite this, no payment has been made to him. 7.He further contends that both the insurer and the Respondent have engaged in delaying tactics aimed at evading liability, by severally trying to subject him to further medical examinations without justification. 8.Mr. Mwenda deposes that at the time of filing the present application, he was both economically and physically incapacitated, requiring constant assistance from a caregiver, which has imposed additional financial burden. He further states that his condition continues to deteriorate, with episodes of fainting and loss of consciousness, and that he requires the award amount to cater for surgical intervention and physiotherapy clinics. 9.In response to the Notice of Motion, the Respondent filed a Replying Affidavit sworn on 24th September 2025 by Samuel Odinda, who describes himself as the Respondent’s Human Resource Manager. 10.Mr. Odinda contends that this Honourable Court lacks jurisdiction to entertain or enforce the award issued by the Director on 28th November 2024. 11.He further objects to prayer 2(b) of the Application, in which the Applicant seeks compound interest, contending that any interest applicable under law is simple interest and not compound interest. 12.Mr. Odinda further avers that the Respondent was never served with the claim forms, medical assessment report, or the Director’s decision, and was therefore denied the right to be heard, in contravention of Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015. 13.It is his further contention that the purported award of Kshs. 1,526,675/- was made without notice to the Respondent, who only became aware of it upon receipt of a demand letter from the Applicant’s advocates, long after the statutory period for objection or appeal had lapsed. 14.Mr. Odinda further avers that the Applicant was subsequently re-examined by an independent medical practitioner, Dr. Wambugu, on 25th February 2025, who opined that the Applicant had sustained soft tissue injuries without any residual permanent incapacitation. 15.He contends that this material medical evidence was not considered by the Director in arriving at the impugned assessment. 16.According to Mr. Odinda, the Director’s award, having been made without procedural fairness and without due consideration of relevant medical evidence, cannot be enforced until its validity is determined in the pending application and intended appeal. 17.He further asserts that the present application for enforcement is an attempt to circumvent the statutory appellate process under Section 52(2) of the Work Injury Benefits Act. Submissions 18.The Application was canvassed by way of written submissions. The Court has paid due consideration to the submissions by both parties. Analysis and Determination 19.Having reviewed the Notice of Motion, the Respondent’s response, and the rival submissions, the Court is of the view that the following issues arise for determination: -a.Whether this Court has jurisdiction to hear and determine the instant Notice of Motion;b.Depending on (a) above, whether the Notice of Motion is merited, and in particular whether this Court should adopt the award made on 28th November 2024 by the Director. Jurisdiction of the Court to hear and determine the Motion 20.In its response to the Notice of Motion, the Respondent contends that this Court lacks jurisdiction to adopt and enforce the decision of the Director. It is further submitted by the Respondent that the Work Injury Benefits Act does not expressly provide a mechanism for the adoption or enforcement of the Director’s award through the E&LRC in its original jurisdiction. 21.According to the Respondent, the only express jurisdiction conferred upon this Court under the Act is appellate jurisdiction under Section 52(2) of the Work Injury Benefits Act and consequently, this Court lacks jurisdiction to enforce the award made by the Director. 22.Indeed, as correctly submitted by the Respondent, the Work Injury Benefits Act does not provide an express mechanism for the enforcement of an award issued by the Director. Does this therefore mean that this Court is without jurisdiction to adopt and enforce the decision of the Director? 23.The Court (Makau J) was confronted with a similar issue in Samson Chweya Mwendabole v Protective Custody Limited [2021] KEELRC 1809 (KLR), and expressed itself as follows: -“…There is a lacuna in law with respect to procedure for enforcement of the awards made by the Director under WIBA. However, this court being endowed with unlimited original and appellate jurisdiction in disputes related to employment and labour relations pursuant to Article 162(2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, I hold that it has the inherent jurisdiction to adopt as judgement the Director’s award for purposes of execution. This jurisdiction should not be confused with appellate jurisdiction which is expressly donated under section 52 (2) of the WIBA in respect of the Directors reply to objection made under section 51(1) of the WIBA.” Underlined for emphasis 24.Similarly, in the case of Richard Akama Nyambane v ICG Maltauro Spa [2020] KEELRC 847 (KLR), the Court had this to say:“As held in the cited case of Ruth Wambui Mwangi & another versus Alfarah Wholesalers Limited [2017] eKLR, upon Directorate of Occupational Safety and Health Services (DOSHS) making the work injury assessment under Occupational Safety and Health Act, 2007 on the award by the Director under WIBA, there is no enforcement mechanism and this being the court with mandate to address employment and labour relations claims and for connected purposes, the practice has been to file such claims under the provisions of section 89 of the Act as the Work Injury Benefits Act, 2007 read with the Occupational Safety and Health Act, 2007 do not outline the enforcement mechanism and procedures save to address work place injury assessment and award by the Director.” 25.More recently, the Court of Appeal in Charles v Cheto [2025] KECA 784 (KLR) affirmed the position adopted by the Employment and Labour Relations Courts on the issue and held as follows: -“As the learned Judge correctly observed, there is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes, and as provided for under sections 86 and 89 (formerly sections 87 and 90) of the Employment Act (Cap. 226).” Underlined for emphasis 26.This Court adopts the foregoing authorities and accordingly finds that it is vested with jurisdiction to enforce the award issued by the Director under the Work Injury Benefits Act. 27.Having so found, the Court now turns to consider the second issue for determination. Merit in the Motion 28.The Respondent contends that the award by the Director was made without notice to it and that it was not afforded an opportunity to be heard. The Respondent further avers that it only became aware of the proceedings upon receipt of a demand letter seeking settlement of the said award. 29.In the case of Charles v Cheto [2025] KECA 784 (KLR), the Court of Appeal upheld the trial Judge’s finding that Sections 51 and 52 of WIBA are silent on the remedies available to a party who becomes aware of proceedings before the Director after the statutory period for lodging an objection or filing an appeal has lapsed. The Court further concurred with the trial Judge that, in such circumstances, the appropriate course is to lodge a Motion for Judicial Review to quash the award before its adoption by the Court, while first seeking to stay the adoption proceedings. 30.As correctly observed by the Court of Appeal, the only available recourse for a party such as the Respondent, who alleges that it became aware of proceedings before the Director only after the award had been made and upon lapse of the statutory period for lodging an objection or filing an appeal, is to institute judicial review proceedings seeking to quash the Director’s award. 31.What can be drawn from the binding decision in Charles v Cheto (supra) is that the Respondent’s assertion that it did not participate in the proceedings before the Director and was thereby denied the right to be heard contrary to Articles 47 and 50 of the Constitution is not germane to the present proceedings, which are confined strictly to enforcement. 32.As was also held in the Cheto case (supra), the appellant, having failed to take steps to seek judicial review of the Director’s award, was misguided in attempting to frame the matter as a violation of his constitutional right to a fair hearing. 33.Equally, in the present case, this Court finds that the Respondent cannot at this juncture raise issues relating to the Director’s alleged failure to accord it a hearing as guaranteed under Articles 47 and 50 of the Constitution, or complaints of non-service. 34.There being no appeal against the Director’s award in the case herein, and the Respondent having not invoked the appropriate legal avenue as outlined above to challenge the Director’s award, this Court finds no basis upon which to decline the Applicant’s prayer for adoption of the said award. 35.Consequently, this Court finds that the Applicant is entitled to the sum of Kshs. 1,526,675 as assessed by the Director on 28th November 2024. 36.The Court further awards interest on the said sum at court rates from the date of this Ruling until payment in full. For the avoidance of doubt, the interest awarded herein shall be simple interest and not compound interest. 37.The Respondent shall bear the costs of these proceedings. DATED, SIGNED AND DELIVERED AT MERU THIS 4TH DAY OF JUNE 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Applicant Ms. MusiliFor the Respondent Mr. MurimiCourt Assistant QabaleORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE