Lichungu & another v Millenia Ltd (Miscellaneous Application E329 of 2025) [2026] KEELRC 2275 (KLR) (30 July 2026) (Ruling)

Lichungu & another v Millenia Ltd (Miscellaneous Application E329 of 2025) [2026] KEELRC 2275 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2275 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E329 of 2025 BOM Manani, J July 30, 2026 Between Winikister Nasimiyu Lichungu 1st Applicant Isaac Scout Fundi Sindani 2nd Applicant and Millenia Limited Respondent Ruling 1.Before the court is an application dated 4th September 2025 seeking the following orders:-a)That the court adopts the assessment by the Director of Occupational Safety and Health Services dated 8th March 2023 in the sum of Ksh. 1,785,600.00 as a judgment of the court.b)That the court issues a decree for the aforesaid amount.c)That the court awards interest on the award from 8th March 2023 till payment in full.d)That the Respondent be ordered to pay costs of the application. 2.The application is supported by the grounds on the face thereof and the affidavit by the 1st Applicant. The Applicants aver that they are the legal representatives of the estate of one Japheth Scout Fundia (the deceased) who died on 4th May 2020 whilst on duty at the Respondent’s premises. They aver that the accident was reported to the Director of Occupational Safety and Health Services (the Director) who assessed the compensation which is payable to the estate of the deceased in the sum of Ksh. 1,785,600.00. They further aver that despite the Respondent being notified of the award, it has failed to pay the aforesaid sum. Hence the decision to institute these proceedings. 3.Despite the Respondent being served with the application, it neither entered appearance nor filed a response to it. As such, the motion is not opposed. 4.Although the Applicants contend that they instituted the action in their capacity as the legal representatives of the estate of the deceased, they did not exhibit the letter of administration which entitle them to act as such. Absent this, they cannot purport to have instituted the action in the capacity of legal representatives of the deceased. 5.That said, the Work Injury Benefits Act pursuant to which the award herein was made makes it plain that compensation which is awarded under the Act does not form part of the estate of the deceased employee. This is because the award is meant to benefit the dependants of the deceased employee and not his estate. 6.The foregoing is clear from sections 20 and 26 (5) of the Act which, inter alia, provide as follows:-‘’Compensation paid under this Act for the death of an employee shall not form part of the employee’s estate.’’‘’The Director shall, within thirty days of receipt of the money claimed under subsection (1), pay the money to the employee who made the claim or his dependants.’’ 7.The individuals who constitute dependants of a deceased employee are set out in section 2 as read with section 6 of the Act. They include:the widow(s) or widower of an employee;a child of the employee who has not attained the age of eighteen years including a posthumous child , a stepchild and a child adopted prior to the accident, or any other child of the deceased who is not contemplated in the above list but excluding a child who is married or who is self-supporting;a parent, step-parent or an adoptive parent who adopted such employee if he adopted prior to the accident or death;a brother, sister, half-brother, half-sister or parent, grandparent, or grandchild of an employee; and any other person who at the time of the accident was wholly dependent upon the employee for the necessaries of life. 8.The Applicants have annexed to the application a letter dated 27th May 2020 from the Office of the Chief, Chekalini location. The letter sets out the list of the deceased’s dependants. 9.The letter mentions the 1st Applicant as a spouse of the deceased. In terms of the provisions regarding dependants under the Work Injury Benefits Act, the 1st Applicant qualifies as a dependant of the deceased. 10.Whilst the letter recognizes the 1st Applicant as the deceased’s spouse, it does not indicate the relationship of the 2nd Applicant to the deceased person. Absent this, it is not possible for the court to determine whether this particular Applicant qualifies as the deceased’s dependant within the meaning of section 6 of the Work Injury Benefits Act. 11.Having regard to the foresaid, it is apparent that there is lack of clarity regarding who the deceased’s dependants are. Consequently, the matter requires clarification before the amount in the award can be disbursed. 12.Section 5 G of the Public Trustee Act empowers the Public Trustee to receive amounts awarded as compensation to a deceased employee under the Work Injury Benefits Act for purposes of administration. The provision states as follows:-‘’The Public Trustee may receive payments of compensation under the Work Injury Benefits Act (Cap. 236), Pensions Act (Cap. 189), Civil Servants Group Accident Insurance Scheme and any other payment arising from compensation as a result of an accident and administer the funds as prescribed.’’ 13.Taking into account the matters which have been flagged in the decision, the court is of the view that this is a fit case in which the Public Trustee should be entrusted with the obligation of administering the compensation which was awarded to the deceased after verifying his (the deceased’s) dependants in accordance with the provisions of the Work Injury Benefits Act. 14.Regarding whether the court has the power to adopt the award as its judgment, this is now settled and requires no debate. It (the court) has this power (seeCharles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment)). 15.Having regard to the aforesaid, the court issues the following orders:-a.The court adopts the award by the Director of Occupational Safety and Health Services dated 8th March 2023 in the sum of Ksh. 1,785,600.00 as a judgment of the court.b.The court awards interest on the amount at court rates from the date of this decision.c.The court awards the Applicants costs of the application assessed at Ksh. 5,000.00.d.The court directs the aforesaid award by the Director of Occupational Safety and Health Services, the interest thereon and the costs of the application to be paid to the Public Trustee in accordance with section 5 G of the Public Trustee Act for purposes of disbursement to verified dependants of the deceased person. DATED, SIGNED AND DELIVERED ON THE 30TH DAY OF JULY, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Applicants…………….for the RespondentOrderIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI