https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1450

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT KAKAMEGA** **MISC. APPLICATION NO. E007 OF 2025** **IN THE MATTER OF: ENFORCEMENT OF THE AWARD OF THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES, KAKAMEGA** **AND** **IN THE MATTER OF: SECTIONS 10(1), 19(2) AND 51 OF THE WORK INJURY BENEFITS ACT CAP 236** **AND** **IN THE MATTER OF: ARTICLES 27(1) & (2), 41(1) AND 162(2) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT AND THE INHERENT POWERS OF THE COURT** **AND** **IN THE MATTER OF: RULE 69 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT [PROCEDURE] RULES, 2024** **BETWEEN** **SUSAN NABWIRE …………………………………..…APPLICANT** **(Suing for and on behalf of the Estate of Billy Imbosa (Deceased)** **-VERSUS-** **PROCRAFT CONSTRUCTION LIMITED……1ST RESPONDENT** **TRIDENT INSURANCE COMPANY** **LIMITED………………………………………….2ND RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. The Applicant through Odunga &Associates Advocates filed a Notice of motion (the application) dated 25th July 2025 seeking for the following orders – 3. ***Spent.*** 4. ***The Honorable Court be pleased to adopt as judgment of the Court, the assessment/award of the Director of Occupational Safety and Health Services, Kakamega, made on 24th February, 2025.*** 5. ***A Decree do issue against the Respondents jointly and severally for –*** 6. ***The sum of Kshs1,248,000/- being the Director's award/assessment made on 24th February, 2025;*** 7. ***Reasonable burial expenses for Kshs 612,540/-; and*** 8. ***Interests on the assessed/awarded sum at court rates (14%) from the date of the award (24th February 2025) until payment in full.*** 9. ***Costs of this Application be awarded to the Applicant.*** 10. The application is expressed to be brought under ***Article 162 of the Constitution, Section 12 of the Employment and Labour Relations Court Act, Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Section 19(2) and 51 of the Work Injury Benefits Act, Order 40 and 51 of the Civil Procedure Rules, 2010 Articles 159(2)(d) of the Constitution; and, all enabling provisions of law.*** 11. The application is based on the grounds on the face of it and supported with the affidavit of the Applicant, sworn on even date, with several annexures thereto. 12. Upon service of the application, the 1st Respondent, through G.K Ondoro & Company Advocates, filed a replying affidavit sworn by Kevin Omwanga, the director of the 1st respondent, on 7th October 2025, with several annexures thereto, in opposition to the application. The 1st Respondent also filed a further affidavit sworn by Kevin Omwanga on 15th October 2025. 13. In answer to the 1st Respondent’s replying affidavit, the Applicant filed a supplementary affidavit sworn by herself on 21st October 2025. 14. The 2nd Respondent did not participate in the proceedings though duly served. 15. By consent and upon directions by the court, the application was canvassed by way of written submissions. Mr. Weloba for the Applicant filed written submissions dated 21st October 2025 while Ms Ondoro for the 1st Respondent filed submissions dated 7th October 2025. 16. **THE EVIDENCE** 17. In the supporting and supplementary affidavits by the Applicant, it is deponed that the deceased, Billy Imbosa, sustained fatal work-related injuries on 10th September 2024 while in the employ of the 1st Respondent. 18. It is deponed that the accident was reported to the Directorate of Occupational Safety and Health Services (DOSH) whereby the claim was assessed and issued a DOSH/WIBA Form 4 was issued on 24th February 2025 awarding compensation of Kshs1,248,000/= to the deceased’s estate on account of 100% permanent incapacity resulting in death. 19. It is Applicant’s that despite being notified of the assessment, the 1st Respondent neither appealed against the award nor settled the assessed amount within the timelines prescribed under ***section 26(4) of the Work Injury Benefits Act (WIBA).*** It is deponed that the Respondent’s refusal and or failure to pay demonstrates its unwillingness to comply with the law occasioning injustice to the estate and family of the deceased. 20. The Applicant further claims funeral expenses pursuant to ***section 34 of WIBA***, stating that she incurred burial expenses amounting to approximately Kshs612,540/= are specifically pleaded and supported with receipts annexed to the affidavits. 21. The Applicant also states that the 1st Respondent admitted that it held a valid WIBA insurance policy issued by the 2nd Respondent at the time of the accident. She therefore argues that both the employer and insurer are jointly liable to satisfy the DOSH award. 22. In response to the allegation that the 1st Respondent paid Kshs. 200,000/= towards funeral expenses, the Applicant denies that any such payment was made to her or to any beneficiary of the deceased’s estate. She challenges the authenticity of the alleged funeral budget and asserts that the alleged recipient, one Gordon Okoth, is unknown to the family. She also points out that the Respondent failed to annex the affidavit allegedly sworn by the said Gordon Okoth and urges the Court to disregard the allegation. 23. The Applicant, therefore, seeks enforcement of the Director’s award together with the claimed funeral expenses and urges the Court to compel the Respondents to satisfy the claim 24. In its response as embodied in the replying affidavit, sworn on 7th October 2025 and the further affidavit, Kevin Omwanga, the Director of the 1st Respondent, depones that the deceased was employed by the 1st Respondent as a casual labourer at the time of the accident on 10th September 2024, that resulted in his death. He depones that the incident was duly reported to the DOSH in compliance with the ***WIBA***. 25. He further deposes that at the material time, the 1st Respondent had procured and maintained a valid WIBA insurance policy with the 2nd Respondent under Policy No. 140/110/1/009994/2024, effective from 10th June 2024 to 9th June 2025, under which the deceased was duly covered. Upon receipt of the Director’s assessment dated 24th February 2025, the same was forwarded to the 2nd Respondent for settlement in accordance with the policy terms and statutory framework of the policy. 26. It is deposed further that under ***Sections 7(1) & 23(1) of WIBA***, the employer’s liability to compensate an employee or his estate for work-related injury or death is statutorily indemnified by the insurer, and that the assessed compensation is recoverable from the insurer. It is deposed that the 1st Respondent has fully discharged its statutory obligations by procuring insurance cover and notifying the insurer of the claim and, therefore, the liability to satisfy the award lies solely with the 2nd Respondent. 27. It is further asserted that the Applicant’s claim to hold the Respondents jointly and severally liable is misconceived as it ignores the statutory distinction between the obligations of the employer and the insurer under ***WIBA***. 28. In regard to funeral expenses, the deponent states that ***WIBA*** provides for reasonable funeral expenses under ***Section 34*** although no regulations prescribing the applicable scale have been enacted. He avers that the deceased’s family initially presented a funeral budget that was discussed and negotiated between the parties. It is deposed that the 1st Respondent appointed one Gordon Okoth as the 1st Respondent’s representative to engage the family and that following negotiations, an agreement was reached for payment of Kshs200,000/= as reasonable funeral expenses. 29. It is further averred that the deponent was informed of the agreement and facilitated the transfer of the agreed sum through company representatives for onward transmission to the family.It is stated that the amount was delivered on 17th September 2024 to the deceased’s uncle, who received and counted the money in the presence of other family members as per the photographic evidence and transaction screenshots annexed to the affidavit. 30. The 1st Respondent maintains that it duly discharged its obligation towards funeral expenses in good faith and in accordance with the agreed settlement with the family and that the subsequent claim for additional burial expenses is an afterthought, exaggerated, and unsupported. It is further deposed that the Applicant has failed to demonstrate entitlement to any further sums under ***Section 34 of WIBA.*** 31. The 1st Respondent accordingly urges the Court to find that it has fully complied with its statutory obligations and that any liability arising from the DOSH assessment lies solely with the 2nd Respondent, the insurer. 32. **SUBMISSIONS** 33. Counsel for the Applicant identified the issues for determination as – ***Whether both the 1st and 2nd Respondents should be held jointly and severally liable to settle the Director’s award of Kshs1,248,000/= assessed on 24th February 2025;*** and, ***Whether the applicant is entitled to burial expenses amounting to Kshs612,540/=.*** 34. On the first issue, it is submitted that both the 1st and 2nd Respondents ought to be held jointly and severally liable for settlement of the award since the 1st Respondent admitted that it held a valid ***WIBA*** insurance policy issued by the 2nd Respondent as at the time of the accident on 10th September 2024. 35. Reliance is placed on ***Sections 17, 26(4), & (6) of WIBA*** obligating an employer or insurer against whom a compensation claim is lodged to settle the same within 90 days. It is submitted that the 1st Respondent does not dispute the DOSH assessment or the existence of insurance cover and, therefore, liability attaches jointly to both Respondents. To buttress this point, counsel cited the decision in ***Mwakulomba & another (Suing as the Legal Representatives of the Estate of Javan Mwakulomba Mghendi (Deceased)) v YMM Freight Limited; Fidelity Shield Insurance Company Limited (Third party) [2025] KEELRC 781 (KLR)*** arguing that an insurer’s obligation to indemnify the employer under a valid ***WIBA*** policy is inseparable from the employer’s statutory liability. 36. On burial expenses, Applicant’s counsel argued that the same are recoverable under ***Section 34 of WIBA*** as reasonable funeral expenses payable upon the death of an employee arising from a work-related injury. It is submitted that although regulations prescribing the amount of reasonable burial expenses have not been enacted, the Court retains jurisdiction to determine and award reasonable expenses proved by evidence. The counsel relied on the decision in ***Mwakulomba & another (Suing as the Legal Representatives of the Estate of Javan Mwakulomba Mghendi (Deceased)) v YMM Freight Limited; Fidelity Shield Insurance Company Limited (Third party) (supra),*** wherein the Court held that funeral expenses being special damages must be specifically pleaded and strictly proved. The Applicant states that receipts evidencing funeral expenditure amounting to Kshs612,540/= were annexed, and the burden of proof was therefore discharged. 37. It is further contended that the 1st Respondent’s allegation that it contributed towards burial expenses was sufficiently rebutted in the supplementary affidavit. Consequently, the Applicant urges the Court to allow the application and enter judgment jointly and severally against the Respondents together with costs. 38. On the other hand, Counsel for the 1st respondent identified the following two issues for the determination by the court – ***Whether the 2nd Respondent bears the primary obligation to settle the compensation claim assessed,*** and***, Whether the Applicant should be awarded the funeral expenses as prayed.*** 39. On the first issue, counsel submitted that the 1st Respondent had fully complied with its obligations under ***WIBA*** by obtaining and maintaining a valid ***WIBA*** insurance policy with the 2nd Respondent to cover work-related accidents and fatalities involving its employees. It is argued that the fatal accident involving the deceased occurred during the subsistence of the insurance policy and that upon the accident being reported to DOSH the claim was duly forwarded to the insurer for settlement. 40. It is argued that under ***Sections 10, 23 and 26(4) of the WIBA***, the 2nd Respondent bore the primary obligation to satisfy the compensation as assessed awarded. It is further submitted that the 1st Respondent, having complied with all statutory obligations, including payment of insurance premiums and notification of the claim, ought not to be held liable for the insurer’s failure to settle the award. Counsel cited ***Nduwa v Bash Hauliers Limited [2025] KEELRC 321 (KLR)*** for the proposition that the Court has jurisdiction to enforce awards issued by (OSHA). 41. On funeral expenses, it is submitted that ***Section 34(4) of WIBA*** only permits recovery of reasonable funeral expenses. It stated that prior to the burial, the Respondent contributed Kshs200,000/= towards the funeral expenses of the deceased, which amount catered for essential burial expenses. 42. Counsel contends that the Applicant’s claim for Kshs612,540/= is excessive, unreasonable, and unsupported by the law. Counsel cited in ***Kahindi & another (Suing for and on behalf of the Estate of Dickson Randu Kahindi - Deceased) v Shyam General Merchants Limited [2025] KEELRC 2674 (KLR)*** and ***Mwakulomba & another (Suing as the Legal Representatives of the Estate of Javan Mwakulomba Mghendi (Deceased)) v YMM Freight Limited; Fidelity Shield Insurance Company Limited (Third party) (supra),*** wherein the Court reduced exaggerated claims for funeral expenses. 43. The Court is urged to find that the 2nd Respondent bore the primary obligation to satisfy the compensation award and that the sum of Kshs200,000/= already paid constituted full and reasonable settlement of funeral expenses. 44. **ISSUES FOR DETERMINATION** 45. The factual background leading to this application has been set out by the parties and their respective counsel as per the summary in the preceding parts of this ruling. The gist of the application is that the Applicant was awarded by ***DOSH*** as alluded to above, yet the 1st Respondent has neither settled the award nor made acceptable or reasonable proposals on the settlement of the same. 46. It is not in dispute that the 1st Respondent neither objected to the award nor appealed the same, notwithstanding that it was duly notified and demanded to settle the same. The only contention is that the award should be paid by the 2nd Respondent, the insurer. The 1st Respondent also objects to the claim of funeral expenses, alleging that the same has been settled. The Applicant has denied payment and receipt of the alleged funeral expenses and costs. 47. Upon the court considering the evidence availed by way of affidavits and the arguments advanced in the submissions from both sides, the following issues commend themselves to the court for determination – 48. ***Whether the Respondents are jointly liable for the settlement of the DOSH award of Kshs1,248,000/=.*** 49. ***Whether the Applicant is entitled to the sum of Kshs612,540/= claimed for funeral expenses.*** 50. ***Who bears the costs of this application?*** 51. **LIABILITY** 52. On the first issue, documents filed by the Applicant particularly the Notice by Employer of an Occupational Accident (DOSH Form 1), clearly show that the deceased was employed by the 1st Respondent as a casual labourer in a construction site and, that the cause of the death was a fatal head injury caused by a falling piece of wood. The 2nd Respondent’s name is indicated on the said document as the 1st Respondent’s Insurer. 53. The issue of liability does not appear to have been in dispute before the Director, as the 1st Respondent had already issued and sent Statutory Notice by Employer to the Director (DOSH Form 1) reporting a fatal work injury to its employee (the deceased) and giving all the required details of the deceased’s employment. 54. Having assessed the compensation payable to the deceased employee’s estate, the Director sent his decision (DOSH/WIBA4) and demand for payment dated 24th February 2025 to the 1st Respondent. The 1st Respondent did not object to the award pursuant to ***Section 51 of WIBA***. The assessed sum of Kshs1,248,000/- payable to the deceased’s estate has not been settled by the 1st Respondent as awarded and demanded. 55. The Respondent opines that having forwarded the award to its insurer the 2nd respondent, its obligation to pay the Estate of the Deceased lapsed. The court finds and holds that the insurance policy is a contract between the insured (the 1st Respondent) and the insurer (the 2nd Respondent). The 1st Respondent remained responsible in ensuring that any awards against it are settled either by itself or the insurer, as there was no privity of contract between the deceased employee and the 2nd Respondent. The award made by DOSH was solely against the 1st Respondent. In that regard no liability attaches to the 2nd Respondent and the claim against it shall fail and the same is hereby dismissed. 56. **FUNERAL EXPENSES** 57. As far as the court understands the case for the 1st Respondent and the submissions by its counsel, it is not opposed that funeral expenses are payable to the Applicant. However, it is opposed to the award of the sum of Kshs612,540/= claimed for the same. According to the 1st Respondent, the Applicant’s family presented a budget for funeral expenses that was exaggerated, unfair, and unreasonable but after deliberations, the Estate was allegedly paid a sum of Kshs200,000/= in cash purportedly through an uncle of the deceased in the presence of members of the deceased’s family. The 1st Respondent produced photos of three persons who are said to have been present when the deceased’s uncle received the cash from its representative. 58. The Applicant denies this payment contending that the 1st Respondent did not pay any money to the Estate as there was no need for an uncle to receive the money as the deceased’s father was alive. The Applicant contends that the 1st Respondent has not disclosed the name of the purported uncle and in any event no such person is an administrator or a beneficiary of the Estate of the deceased. 59. The court is not convinced that the said amount of Kshs200,000/= was actually paid as claimed. Moreover, persons in the photos adduced by the 1st Respondent are not a proof of the payment of funeral expenses; it could have been any other occasion and, there is no indication of the amount received either. The Applicant denied that any person received money for or on behalf of the Estate of the deceased. In any event, why was the same paid to persons who were neither administrators of the estate of the deceased nor beneficiaries. 60. It is a fundamental principle and presumption of the law that there is no legal wrong without a remedy – *Ubi jus ibi remedium*. Although the Minister has not formulated the regulations envisaged under ***Section 34 of WIBA***, the court cannot and should not sit back and fail to remedy and compensate the Applicant albeit only for fair, just, reasonable, and lawful expenses incurred in the burial of the deceased. 61. It is not in dispute that the remains of the deceased were indeed interred. For sure, some expenses were incurred in the burial for a death that was directly related to his employment with the 1st Respondent. The court has for sure to order reasonable compensation for genuine and necessary burial expenses that were incurred. 62. The court has gone through the receipts provided by the Applicant in support of the expenses incurred in the funeral. While the 1st Respondent did not challenge for the makers of the said documents to appear in court and or swear affidavits in support of the claimed payments, the court notes that some of the receipts are neither in the names of the Applicant nor can the makers be ascertained, as they simply indicate ‘Cash sale’ without the merchant’s or supplier’s name. 63. There is no dispute that mourners are fed, and tents are pitched for days or weeks in most African funerals. There is also no dispute that the body must have been preserved, a grave dug, the body clothed, and transported for burial. However, it is also fair and just to comment that funerals and burials should not be turned into feasts. 64. Doing the best that I can in the circumstances, the court awards a sum of Kshs400,000/= as reasonable expenses incurred for the burial/funeral. 65. The 1st Respondent is free to claim indemnity from the 2nd Respondent in the appropriate forum as that is not the subject matter before this court. 66. **ORDERS** 67. ***The notice of motion by the Applicant dated 25th July 2025 is hereby allowed as hereunder –*** 1. ***The award of Kshs1,248,000/= made by the Director is hereby affirmed and judgment entered therefor in favour of the Applicant against the 1st Respondent.*** 2. ***The Applicant is hereby awarded a sum of Kshs400,000/= being reasonable funeral expenses.*** 3. ***The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.*** 4. ***The award in (b) above shall attract interest from the date of this ruling till payment in full.*** 5. ***Costs of the application to the Applicant.*** 6. ***A decree shall issue accordingly.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 28TH DAY OF MAY 2026.** **....................................** **DAVID NDERITU** **JUDGE**