https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2283

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT MАСНАКOS ELRC MISC. APPLICATION NO. E012 OF 2026 IN THE MATTER OF: ENFORCEMENT OF THE AWARD OF THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES, NAIROBI (p. 1) -AND- IN THE MATTER OF: SECTIONS 16, 26, AND 52 OF THE WORK INJURY BENEFITS ACT (WIBA), САР 236 (p. 2) -AND- IN THE MATTER OF: RULE 17 AND 69 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT (PROCEDURE) RULES, 2024 (p. 1) -BETWEEN- MAINGI MWANZII AND PATRICIA KANYIVA KINYUMU (All suing for and on behalf of the estate of Simon Munyao Maingi - Deceased) …………………………………………………………....RESPONDENTS / APPLICANTS -VERSUS- TULIP INTERIOR DESIGNS LIMITED …………………………………….……APPLICANT/ RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant, following the Order of Justice Wasilwa dated 26th June 2026, where the award of DOSH was adopted as Decree of the court, filed the instant application by way of a Notice of Motion dated 17th July 2026 seeking the following orders- 2. spent 3. THAT the Applicant/Respondent (Tulip Interior Designs Limited) be granted an extension of time to lodge and file an Appeal/Objection against the DOSH Award/Assessment dated 23rd July, 2025. 4. THAT a stay of execution and/or stay of adoption of the Director of Occupational Safety and Health Services' award dated 23rd July, 2025, as a judgment of this Court be granted pending the hearing and determination of the intended Appeal. 5. THAT the costs of this application be in the cause. Grounds of the application 1. The employee sustained injuries while in the course of employment. 2. The Employer promptly notified the Directorate of Occupational Safety and Health Services (DOSHS) as required under WIBA. 3. The employee remained hospitalised for approximately one month before being discharged. 8. Subsequently, the employee died at home. 4. The official medical records identify tuberculosis as the cause of death. 5. The medical evidence demonstrates that tuberculosis was unrelated to the occupational injuries sustained during employment. 6. The Employer's insurer could not process compensation because the treating hospital repeatedly failed to provide medical records despite numerous requests. 7. The employee's advocate thereafter approached DOSHS. 8. DOSHS proceeded to assess compensation without notifying or involving the Employer. 9. The Employer was neither invited to participate nor allowed challenging the medical evidence or produce contrary evidence. 10. Court proceedings were subsequently instituted, resulting in judgment against the Employer. 11. The Employer was never properly served with pleadings or hearing notices. 12. The Employer only became aware of the proceedings after receiving a message attaching the judgment. 13. During the material period, the Employer suffered a serious eye condition that significantly impaired her ability to read emails, a fact supported by medical records. 14. The Employer complied with the statutory obligation to report the occupational accident to DOSHS. 20. The Employer further instructed its insurer to process compensation 15. The inability to complete the process resulted from repeated failure by the hospital to release medical records. 16. The Employer cannot reasonably be blamed for delays occasioned by third parties beyond her control. 17. The Applicant's managing director / key decision-maker was incapacitated by severe illness during the critical statutory timelines, rendering the company unable to respond or instruct counsel on time. 18. The Respondent's insurer, M/s Britam Insurance Company Limited, had been formally notified and hence processed the claim due to administrative delays directly arising from the director's sudden illness and absence from office and lack of co-operation from Kenyatta National Hospital. 19. The Applicant has a highly triable and arguable Appeal against the DOSH award assessment. 20. The intended Appeal will be rendered entirely nugatory if this Court adopts the award as a final decree and execution proceeds. 21. No prejudice will be suffered by the Respondents/Applicants if the extension of time is allowed to clear up these critical insurance and medical issues. 22. The application was supported through the affidavit of Iwako Isami of even date. She stated that she was the director of the applicant and, in justification of the delay of 1 year, stated she had been unwell. She stated that during the material period, she was suffering from a severe illness that completely incapacitated her from running the operations of the company or instructing legal counsel. (Attached was a certified medical report marked "IW-1"). 23. The application was opposed vide replying affidavit of Maingi Mwanzwii to effect that the application was tainted by a delay of 1 year since the award, lack of objection to support the appeal and that the court was functus officio having adopted the award and the same reduced to a decree. He also stated the notice of appeal and memorandum of appeal had not been annexed. Maingi stated as follows- ‘THAT I am one of the Applicants/Decree-holders herein, suing jointly with Patricia Kanyiva Kinyumu for and on behalf of the estate of Simon Munyao Maingi (Deceased), and I am competent and duly authorised to swear this affidavit on my own behalf and on behalf of the estate. THAT I have read and understood the Notice of Motion, the Certificate of Urgency and the Supporting Affidavit of Iwako Asami, all dated 17th July 2026, and I swear this affidavit in reply to and in opposition to the same. THAT save for what is expressly admitted herein, I deny each and every allegation of fact contained in the Applicant/Respondent's application as though the same were set out and traversed seriatim. THAT I am advised by our advocates on record, M/s Kanazi & Associates Advocates, which advice I verily believe to be true, that the entire application is incompetent, misconceived, fatally defective, bad in law and a gross abuse of the process of this Honourable Court, calculated only to delay and defeat the Applicants' lawful compensation. THAT the deceased, Simon Munyao Maingi, was at all material times an employee of the Applicant/Respondent (Tulip Interior Designs Limited) and sustained personal injuries arising out of and in the course of his employment, which injuries founded the compensation claim under the Work Injury Benefits Act, Cap 236 ("WIBA"). THAT the accident was duly reported and the claim was lodged before the Director of Occupational Safety and Health Services ("DOSH") in accordance with Sections 16 and 26 of WIBA. THAT after considering the claim and the medical and other evidence placed before him, the Director lawfully assessed and awarded compensation in the sum of Kshs. 2,995,200/- vide the award dated 23rd July 2025. THAT contrary to the Applicant's assertions, the Applicant/Respondent was at all material times fully aware of the claim, having by its own admission (paragraph 5 of the Supporting Affidavit) reported the accident to DOSH and instructed its insurer, M/s Britam Insurance Company Limited, to process the compensation. It cannot now be heard to plead ignorance. THAT I am advised by our advocates, which advice I verily believe, that under Section 51 of WIBA a person aggrieved by a decision of the Director must lodge an objection with the Director, in the prescribed form and manner, within sixty (60) days of that decision. THAT the Applicant/Respondent NEVER lodged any objection under Section 51 of WIBA against the award of 23rd July 2025. There is therefore no decision on any objection from which any appeal could competently lie. 11. THAT I am further advised, and verily believe, that an appeal to this Honourable Court under Section 52 of WIBA must likewise be lodged within the statutory period following the Director's decision, which the Applicant/Respondent also wholly failed to do. THAT the award having been made on 23rd July 2025, the present application dated 17th July 2026 comes almost one (1) year later, and is hopelessly and inexcusably out of time. THAT the alleged illness of the Applicant's director, Iwako Asami, neither explains nor excuses the entire period of delay running from July 2025 to July 2026. THAT the medical report annexed as "IW-1" is dated 6th July 2026 and describes a known, chronic and managed condition (glaucoma). It does not demonstrate any total incapacity for the whole of the relevant statutory period. THAT the Applicant/Respondent is a limited liability company and a separate legal person capable of acting through its other directors, officers, advocates and its insurer. The alleged indisposition of a single director could not paralyse the entire company, more so where, on its own showing, it had already engaged both an insurer and advocates. THAT the Director's award was lawfully adopted as a judgment of this Honourable Court on 26th June 2026 before the Hon. Lady Justice Hellen Wasilwa. I am advised by our advocates, and verily believe, that this Honourable Court is now functus officio in respect of the adoption, and it is legally impossible to grant a "stay of adoption" of an award that has already been adopted and reduced into a Decree. THAT the Applicant/Respondent has not annexed any draft Memorandum of Appeal, draft Objection or Notice of Appeal, and the bare, unsupported assertion of an "arguable appeal" is insufficient in law to warrant an extension of time or a stay. THAT the belated attempt to re-open the cause of death (allegedly tuberculosis) is a question of fact that ought to have been raised before the Director within the statutory timelines, and cannot be smuggled into these enforcement proceedings after the award has crystallised into a Decree. THAT l am advised by our advocates, and verily believe, that an applicant seeking a stay of execution must satisfy the conditions under Order 42 Rule 6 of the Civil Procedure Rules (as read with the Employment and Labour Relations Court (Procedure) Rules, 2024), namely; proof of substantial loss, absence of unreasonable delay, and provision of security for the due performance of the Decree. THAT the Applicant/Respondent has neither demonstrated any substantial loss, nor moved this court without unreasonable delay, nor offered any security whatsoever, and is therefore not entitled to a stay. THAT the dependants and estate of the deceased have waited since 2025 for their lawful compensation and continue to suffer real hardship on account of the Applicant's deliberate inaction. THAT WIBA is a beneficial statute enacted to provide prompt and adequate compensation to injured workers and their dependants. To reward the Applicant's year-long inaction would defeat the object and purpose of the Act and offend Article 159(2) of the Constitution of Kenya, 2010, which requires that justice be administered without undue delay. THAT the Applicant/Respondent has approached this Honourable Court without candour and with unclean hands, having slept on its rights for almost a year and seeking indulgence only when confronted with execution. THAT it is in the interest of justice that the application dated 17th July 2026 be dismissed with costs so that the Applicants may lawfully execute the Decree of this Honourable Court’. 24. The respondent/applicant filed a further affidavit dated 27th July 2026 through Iwako Asami and stated as follows- ‘THAT in response to Paragraphs 6, 7, and 18 of the Replying Affidavit, the Respondent has genuine, compelling reasons to doubt the validity and accuracy of the compensation assessment made by the Director of Occupational Safety and Health Services ("DOSH"). THAT the said DOSH assessment was done blindly and prematurely without the benefit of the Deceased's primary medical records from Kenyatta National Hospital (KNH), where the Deceased was institutionalized and treated prior to his demise.(attached and marked as IW 1 is a copy of letter to DOSH). THAT the failure to procure and evaluate the KNH medical records fundamentally compromises the DOSH award, as it concealed the true and primary cause of death-which the Respondent has credible reason to believe was an independent medical condition (Tuberculosis) completely unrelated to his work environment. THAT the Respondent is currently actively following up with Kenyatta National Hospital to secure the official release of these critical medical histories, a process that has faced administrative delays beyond the Respondent's control.(attached and marked as IW2 is a letter to KNH 7.)THAT in response to Paragraph 8 of the Replying Affidavit, the Respondent's insurer, M/s Britam Insurance Company Limited, has formally notified the Respondent that it cannot process, evaluate, or settle the claim under the policy without the production of the missing Kenyatta National Hospital medical records. THAT the absence of these core medical documents creates an insurmountable obstacle for the insurer, meaning that if execution is forced at this stage, the Respondent will suffer irreversible substantial loss by paying a claim that is contractually un-indemnifiable due to lack of medical proof. THAT the assertion by the Applicants that this issue is being "smuggled" into enforcement proceedings is incorrect and misleading; it goes to the root of whether there is an insurable or compensable statutory event under the Work Injury Benefits Act (WIBA). THAT it is in the interest of justice, equity, and fair trial that the execution of the Decree be stayed to allow the Respondent to finalize the retrieval of the KNH records, ensuring that justice is served based on complete scientific and medical facts rather than an incomplete administrative assessment. ‘’ 25. Counsel for the parties canvassed the application before me on 31st July 2026. During the hearing, the counsel for the applicant, Mr Leibor, relied on the supporting affidavit and further affidavit of Iwako Isami and informed the court they were willing to deposit the decretal sum in court in compliance with Order 42 (6) of the Civil Procedure Rules. The counsel for the decree holder, Ms Kanazi, submitted that the court's delay of 1 year was unexplained, and the medical report indicated the director of the respondent suffered from a chronic disease, glaucoma, which was managed, and that the respondent is a company and could be represented by its employees or advocates, so the disease was not a valid reason to justify the delay. The counsel relied on the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), which set the terms for extension of time when the delay was unexplained. Counsel submitted that there was no objection and thus the issue of appeal could not arise. The counsel also relied on the decision of the court in Wainaina v Salute Holding Occidental Insurance [2026] KEELRC 507 (KLR), where the court held as follows: 'The 1st Respondent has not demonstrated that the award is pending challenge under section 51(1) and 52(2) of the Work Injury Benefits Act. The said section provides that:- Section 51 (1) “Any person aggrieved by the decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.” Section 52 (2) “Any objector may, within thirty days of the Director's reply being received by him, appeal to the Industrial Court against such decision.” The counsel urged that, in the event the court was inclined to issue the stay, the deposit of the decretal sum be done within 14 days. The respondent argued that 14 days was too short and sought 30 days. 26. The notice of appeal was filed on 20th July 2026. The court found that the delay was due to the illness of the employer's Director. It is not for the court to determine the severity of a chronic disease. The respondent stated that stay could be granted on condition of depositing a decretal sum and was willing to do so within 30 days. The court is inclined to allow the application, as prayed, by granting extension of time for the applicant to lodge an objection against the DOSH award dated 23rd July 2025 and to stay the court's decree adopting the DOSH award pending the hearing and determination of the intended objection. The extension is conditional on the decretal sum being deposited in court within 30 days of this ruling. The court agreed with the decision in Wainaina v Salute Holding Occidental Insurance [2026] KEELRC 507 (KLR), that an appeal against the merit of an award could only proceed after an objection, hence the order of extension to file an objection before the DOSH under section 51 of the WIBA (section 20 of the Employment and Labour Relations Act applied). 27. Costs of the application to the respondent (Decree Holder). 28. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 31ST DAY OF JULY, 2026. JEMIMAH KELI, JUDGE IN THE PRESENCE OF: Court Assistant: Otieno Applicant – Leibor Respondent -Kanazi