https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1312

Mulwa v Kalu Works Limited (Miscellaneous Application E235 of 2025) [2026] KEELRC 1312 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1312 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E235 of 2025 AK Nzei, J May 15, 2026 Between Mwendwa Mulwa Applicant and Kalu Works Limited Respondent Ruling 1.The application before me for determination is the Applicant’s Notice of Motion dated 7th July, 2025. The Applicant seeks the following Orders:-a.That this Court be pleased to enter Judgment in favour of the Applicant based on the award of the Director of Occupational Safety and Health Services made in Claim Reference Number WIBA/NRB/00418/2024; and that a decree do issue for execution of the same against the Respondent.b.That Judgement be entered for the Applicant against the Respondent for Kshs.925,454.33 as assessed by the Director of Occupational Safety and Health Services in Claim Reference Number WIBA/NRB/00418/2024.c.That this Court be pleased to award the Applicant interest on the awarded sum at Court rates from the date of the award until payment in full.d.That costs of the application be borne by the Respondent. 2.The application sets out on its face the grounds on which it is brought, and is predicated on the Applicant’s supporting affidavit sworn on 7th July, 2025. It is deponed in the said supporting affidavit:-a.that the Applicant was employed by the Respondent as a machine operator, and that on 27th April, 2021, while in the course of his employment, the Applicant sustained a penetrating injury to his left eye; and that the matter was reported to the Director of Occupational Safety and Health Services.b.that the Applicant’s injuries were assessed at 20% permanent disablement.c.that the Director of Occupational Safety and Health Services thereafter assessed the total compensation payable to the Applicant at Kshs.925,454.33.d.that the said assessment was communicated to the Respondent by the Director, who also made a demand for payment thereof vide a demand dated 28th November, 2024.e.that having failed to pay the said compensation, the Respondent was issued with a follow up letter by the Director dated 9th June, 2025, directing them to pay within 14 days.f.that despite the lapse of the ninety (90) days’ statutory period provided for by Section 26(4) of WIBA, and despite a further demand for payment, the Respondent has refused and/or failed to pay the compensation amount.g.that the Respondent has not appealed against the Director’s assessment and award.h.that this Court has jurisdiction to enforce awards made under WIBA. 3.Documents annexed to the said supporting affidavit include copies of DOSH/WIBA/FORM 4 dated 28th November, 2024 and the Director’s letter to the Respondent dated 9th June, 2025. The Director’s assessment of compensation payable to the Claimant and the formal demand for payment pursuant to Section 26(4) of the Work Injury Benefits Act (WIBA) are contained in the said DOSH/WIBA/FORM 4, dated 28th November, 2024 as aforesaid. 4.The application is opposed by the Respondent vide its grounds of opposition dated 18th November, 2025, which I have considered. 5.I have previously stated, in numerous decisions of this Court, that the Work Injury Benefits Act (WIBA) is silent on how awards of compensation made by the Director of Occupational Safety and Health Services (the Director) in favour of employees who suffer work injuries and occupational diseases are to be enforced. At the same time, the Act does not oust this Court’s Jurisdiction to enforce such awards, and especially when the Director’s decision determining the issues of liability and quantum of compensation pursuant to Sections 23, 28 and 30 of the Act (WIBA) has not been objected to pursuant to Section 51 of the Act; or has been objected to and the objections have been determined in favour of the injured employee. 6.On the issue of this Court’s jurisdiction to enforce the Director’s award, this Court stated as follows in my decision in the case of Ojango – vs – Kenya Revenue Authority [2024] KEELRC 2767 (KLR):-“Pursuant to Article 162(2)(a) of the Constitution of Kenya 2010, this Court has inherent jurisdiction over all employment and labour relations matters, except where that Jurisdiction is expressly ousted by the statute over particular matters specified in that statute. A good example of such a statutory provision is Section 16 of the Work Injury Benefits Act (WIBA) which expressly ousts courts’ jurisdiction to determine issues of liability and assessment of compensation payable in cases involving work injuries and occupational deceases. Section 23 mandates the Director to undertake such enquiries as may be necessary to decide upon any claim or liability in accordance with the Act; while Sections 28 and 30 of the Act make provision on assessment of compensation by the Director.” 7.Further, still on the issue of this Court’s Jurisdiction to enforce WIBA awards, I stated as follows in the case of Amir Swaleh Omar – vs – Mackezie Maritime [E.A] Limited [2022] eKLR:-“17.The Act (WIBA) is silent on how the awards of compensation made by the Director in favour of employees involved in occupational accidents or who suffer occupational deceases are to be enforced. At the same time, the Act does not expressly divest this court of jurisdiction to enforce such awards; and especially where the award of compensation by the Director has not been objected to and the employer has refused to pay the assessed compensation. Did Parliament intend that an employee caught up in such a situation would be left at the mercy of an employer who may choose either to pay or not to pay the assessed sum? I do not think so.18.What would be the purpose of the Director making or undertaking enquiries in order to determine the issue of liability and proceeding to assess the compensation payable if the compensation assessed by the Director was not meant to be paid to the injured employee? In my view, once the Director assesses the compensation payable and the same is not objected to pursuant to Section 51 of WIBA, the assessed sum becomes the injured employee’s right and entitlement regarding which the employee can move to Court and seek enforcement of that right by seeking entry of Judgment in terms of the Director’s assessment, and issuance of a decree which can then be executed to realise that right.19.Indeed, failure by an employer to pay a demanded compensation that has been assessed by the Director and to which no objection has been lodged creates a dispute over a liquidated claim, which this court can entertain and determine. Article 50(1) of the Constitution of Kenya 2010 provides:-Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independed and impartial tribunal or body.” 8.Having demonstrated that this Court is seized of Jurisdiction to enforce the Director’s award made in favour of the Applicant herein on 28th November, 2024, I allow the Notice of Motion dated 7th July, 2025 in the following terms:-a.The award of Kshs.925,454.33 made by the Director of Occupational Safety and Health Services on 28th November, 2024 is hereby adopted by this Court and, accordingly, Judgment is hereby entered for the Applicant against the Respondent in the said sum of Kshs.925,454.33.b.A decree shall issue, and the same shall be enforceable in accordance with the Civil Procedure Rules pursuant to Section 13 of the Employment and Labour Relations Court Act.c.The decreed sum shall attract interest at Court rates from the date of this Ruling until payment in full.d.Costs of the proceedings herein are awarded to the Applicant, to be agreed or taxed. 9.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Mr. Omuga for the ApplicantMr. Marima for the Respondent