[2023] KEELRC 1333 (KLR)

Ngovi (Suing as the administrator and legal representative of the Late Kennedy John Ngovi) v Muloil Limited & another (Petition E010 of 2023) [2023] KEELRC 1333 (KLR) (25 May 2023) (Judgment)

Neutral citation: [2023] KEELRC 1333 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Petition E010 of 2023

M Mbarũ, J

May 25, 2023

Between

Syombua Ngovi (Suing as the administrator and legal representative of the Late Kennedy John Ngovi)

Petitioner

and

Muloil Limited

1st Respondent

2. Director Of Occupational Safety And Health Services

2nd Respondent

Judgment

1. The petition is not opposed. The respondents were served but failed to enter appearance of file any response to the petition.

2. The petitioner is seeking for a declaration that her constitutional rights have been violated by the 1st respondents for failure to make payments as directed by the 2nd respondent and that an order should issue for payment of Kshs 1,209,408 plus interests from October 1, 2015 until paid in full and further that an order of mandamus should issue compelling the 2nd respondent to commence statutory action against the 1st respondent including arrest and prosecution for failing to pay the petitioner.

3. The petition is filed on the basis that the petitioner is the mother to the late Kennedy John Ngovi and she holds Letters of Administrator over his estate as the Administrator. The deceased was employed by the 1st respondent company and the 2nd respondent is established under the Work Injury Benefits Act.

4. The deceased, Kennedy John Ngovi was employed by the 1st respondent as a workman at Gichanga estate in Nyali where he was involved a work injury accident and taken to Coast Provincial General Hospital but died. The accident and death was reported to the 2nd respondent who made an assessment of compensation on October 13, 2015 for Kshs 1,209,408 but the 1st respondent failed to pay and it has now been 7 years since the claim was lodged and the award rendered but there is no compliance. Despite demand to pay, the 1st respondent has refused to comply.

5. The petition is that there are constitutional violations through the failure of the 1st respondent to pay the estate of the late Kennedy John Ngovi through the Administrator and the petitioner herein and the petition should be allowed with costs.

6. The petition is supported by the supporting affidavit of the petitioner.

7. The petitioner submitted that she is a widow aged 71 years and the mother to the late Kennedy John Ngovi who was employed by the 1st respondent and in the course of his employed he was injury and died. The 1st respondent reported the accident to the 2nd respondent who assessed the claim and made an award of Kshs 1,209,408 but the 1st respondent has refused to pay. the failure to pay the award has led to violation of the petitioner’s constitutional right and pursuant to section 34 of the Work Injury Benefits Act, the 1st respondent should be ordered to pay as held in Godfrey Ngondi Waititu v Director of Occupational Safety & health Services [2021] eKLR.

8. The petitioner has moved the court through a petition. Where a party is seeking to enforce a constitutional right and fundamental freedoms and without seeking to challenge the constitutionality of any statute, a memorandum of claim filed in terms of Rule 7(3) of the Employment and Labour Relations Court (Procedure) Rules, 2016 would suffice as held in the case of Sumaiyya Athnami Hassan v Paul Masinde Simidi [2019] eKLR.

9. On the merits of the petition, without any responses, the facts of the petition are not challenged. The deceased, Kennedy John Ngovi was an employee of the 1st respondent who died following work injury. The 1st respondent through letter dated October 2, 2015 reported the matter to the 2nd respondent and on October 13, 2015 the 2nd respondent assessed the work injury benefits upon death and directed for payment of Kshs 1,209,408.

10. Several demands have been made to the 1st respondent to pay the award to the estate of the deceased without compliance. Under Section 26(4) of the Work Injury Benefits Act, upon assessment and directions to pay the award of Kshs 1,209,408 the same became due and owing.

11. The 2nd respondent is under a duty to commence action against the 1st respondent following work injury at its premises and further set in motion prosecution procedures for failure to pay the work injury award as required under the law. The failure to pay the award for work injury despite notice and demand is not justified and effectively the 1st respondent has caused damage and injury to the Estate of the late Kennedy John Ngovi and the petitioner who is the Administrator is entitled to the orders sought in the petition.

12. Accordingly, judgment is hereby entered for the petitioner against the 1st respondent with an order that the 1st respondent shall pay the sum of Kshs 1,209,408 awarded for work injury and further an order of mandamus is hereby issued directed at the 2nd respondent to commence investigations and action against the 1st respondent company following work injury and death of the deceased at its premises. No orders on costs.

DELIVERED IN OPEN COURT AT MOMBASA THIS 25TH DAY OF MAY, 2023. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet Muthaine