https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1605

Nyaruri (Suing on Behalf of Shem Sogota Manyoro Kennedy) & another v Rozzika Garden Centre Limited & another (Miscellaneous Application E042 & E049 of 2025 (Consolidated)) [2026] KEELRC 1605 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1605 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Miscellaneous Application E042 & E049 of 2025 (Consolidated) SC Rutto, J June 12, 2026 Between Nyaboke Nyakangi Nyaruri (Suing on Behalf of Shem Sogota Manyoro Kennedy) Applicant and Rozzika Garden Centre Limited Respondent As consolidated with Miscellaneous Application E049 of 2025 Between Rozikka Garden Centre Limited Applicant and Director of Occupational Safety and Health Services and Nyaboke Nyakangai Nyaruri (Sued as the legal representative of the estate of Shem Sogota Manyoro Kennedy) Respondent (together with Nyeri ELRC Misc. App. No. E049 of 2025; Rozikka Garden Centre Limited v Director of Occupational Safety and Health Services and Nyaboke Nyakangai Nyaruri (Sued as the legal representative of the estate of Shem Sogota Manyoro Kennedy) Ruling 1.This Ruling determines two miscellaneous applications, namely Nyeri ELRC Misc. Application No. E042 of 2025 and Nyeri ELRC Misc. Application No. E049 of 2025. 2.In Nyeri ELRC Misc. Application No. E042 of 2025, Nyaboke Nyakangi Nyaruri is the Applicant, and Rozzika Garden Centre Limited is the Respondent. Conversely, in Nyeri ELRC Misc. Application No. E049 of 2025, Rozzika Garden Centre Limited is the Applicant, while the Director of Occupational Safety and Health Services and Nyaboke Nyakangi Nyaruri are the 1st and 2nd Respondents, respectively. Given that both applications arise from the same set of circumstances, they were canvassed together. 3.For ease of reference, consistency and clarity in this Ruling, Nyaboke Nyakangi Nyaruri shall hereinafter be referred to as “the Applicant”, Rozzika Garden Centre Limited as “the Respondent”, and the Director of Occupational Safety and Health Services as “the Director”. 4.The Applicant moved the Court by way of a Notice of Motion dated 26th September 2025, seeking the following orders: –1.That the Honourable Court adopts the assessment of the Director and Occupational Safety and Health Services as a judgment of the Court.2.That a decree of Kshs 1,584,000 do issue in accordance with the assessment of the Director of Occupational Safety and Health Services.3.That this Honourable Court be pleased to award interest at court rates to be paid by the Respondent form the 30th of April 2025 when the award was made until payment in full.4.That the costs of this application be borne by the Respondent. 5.The Notice of Motion is premised on the grounds set out on its face and is supported by the Affidavit sworn by Nyaboke Nyakangi Nyaruri, the Applicant herein. 6.Ms. Nyaruri deposes that she is the widow of the late Shem Sogota Manyoro Kennedy (deceased), who was, at all material times, employed by the Respondent as an Administration Clerk. 7.She states that on 19th March 2024, the deceased drowned in the course of his employment with the Respondent and sustained fatal injuries. The incident was subsequently reported to the Director. 8.Ms. Nyaruri further avers that upon considering and evaluating the fatal injury claim, the Director assessed compensation payable to the estate of the deceased at Kshs. 1,584,000/= for the fatal occupational injury. She states that the said amount remains unpaid. 9.According to Ms. Nyaruri, the Respondent was served with DOSH/WIBA Form 4, the post-mortem report, and a duly completed DOSH Form 1 on 30th April 2025. 10.She contends that despite several demands and reminders, the Respondent has failed, refused, and/or neglected to settle the assessed compensation. 11.It is her position that the Respondent has no valid defence to the claim, noting that more than 90 days have elapsed since the assessment was made without any appeal or objection having been lodged against the Director’s decision. Consequently, she maintains that the Respondent is under a statutory obligation to satisfy the assessed award. 12.In opposition to the Motion, the Respondent filed a Replying Affidavit sworn on 3rd November 2025 by Benson Okoth, who describes himself as the Respondent’s Farm Manager. 13.Mr. Okoth acknowledges that a workplace accident involving the late Shem Sogota Manyoro Kennedy occurred on 19th March 2024 and that notice of the occupational accident was duly made to the Director. 14.He further deposes that the Respondent was served with DOSH Form 1 on 30th October 2024, receipt of which he acknowledged by signing and affixing the Respondent’s official stamp. 15.Mr. Okoth contends that following service of DOSH Form 1, neither the Applicant nor the Director communicated with the Respondent regarding any investigations into the workplace accident, nor was the Respondent invited to participate in any proceedings for the determination of liability and/or compensation. 16.He states that the Respondent was taken by surprise upon being served with the application for enforcement by the Applicant, from which it learned that the Director had allegedly determined the matter and assessed compensation in favour of the Applicant. He maintains that the Respondent was never afforded an opportunity to participate in investigations or any hearing relating to the cause of the accident or the quantum of compensation payable. 17.Mr. Okoth further avers, on the advice of the Respondent’s advocates, that the Work Injury Benefits Act guarantees an employer the right to participate in the process leading to a determination of liability for a workplace injury and the assessment of compensation payable. 18.He is further advised that the demand forming the basis of the application is fundamentally defective and unlawful, as the Director allegedly failed to involve the Respondent in the administrative process culminating in the impugned assessment. He contends that the resultant violation of the Respondent’s constitutional and statutory rights deprives the Court of jurisdiction to grant the orders sought. 19.Mr. Okoth further argues that prayers 1 and 2 of the application are defective for want of specificity, as the Applicant seeks adoption of an assessment that is neither dated nor otherwise sufficiently identified to distinguish it from other assessments issued by the Director. 20.Subsequent to filing its response to the Applicant’s Notice of Motion, the Respondent instituted a separate matter, namely Nyeri ELRC Misc. Application No. E049 of 2025, Rozzika Garden Centre Limited v Director of Occupational Safety and Health Services & Nyaboke Nyakangi Nyaruri (sued as the legal representative of the Estate of Shem Sogota Manyoro Kennedy). 21.Through the Notice of Motion dated 3rd November 2025 filed in the said matter, the Respondent seeks the following orders:1.The Honourable Court do extend by a period of 30 days the time prescribed under Section 51(1) of the Work Injury Benefits Act to prefer an objection against the 1st Respondent’s decision dated 30.04.2025.2.The Honourable Court do grant the Applicant leave to object out of time against the 1st Respondent’s decision dated 30.04.2025.3.The Honourable Court do stay proceedings in Nyeri ELRC Misc. App. No. E042 of 2025 pending the determination of the objection to the 1st Respondent’s decision dated 30.04.2025.4.The Respondents to bear the costs of this application. 22.The Notice of Motion is anchored on the grounds set out therein and is supported by the Affidavit sworn by Benson Okoth, the Respondent’s Farm Manager. 23.Mr. Okoth deposes that he has been advised by the Respondent’s advocates, which advice he verily believes to be true, that the period prescribed under Section 51(1) of the Work Injury Benefits Act for lodging an objection against the Director’s decision dated 30th April 2025 has since lapsed, thereby rendering it unlikely that any intended objection by the Respondent will be entertained. 24.He avers that it is necessary for the Court to stay further proceedings in Nyeri ELRC Misc. Application No. E042 of 2025 to enable the Respondent to pursue and prosecute its intended objection against the Director’s decision. 25.Mr. Okoth contends that the Respondent was never served with the Director’s decision dated 30th April 2025 and only became aware of its existence upon being served with the pleadings in Nyeri ELRC Misc. Application No. E042 of 2025. He further asserts that both the Applicant and the Director failed to involve the Respondent in the process leading to the determination of the notice of occupational accident dated 30th October 2024, with the result that the Director’s decision is fundamentally flawed, unjust, and unlawful. 26.It is Mr. Okoth’s position that the compensation awarded by the Director is excessive and unjustified, and that the Respondent wishes to challenge the same through the prescribed statutory process. 27.The Director opposed the Motion through a Replying Affidavit sworn on 16th March 2026 by Tom Okeyo Apiyo, who describes himself as the Assistant Director of Occupational Safety and Health Services and County Occupational Safety and Health Officer-Laikipia County. 28.Mr. Okeyo deposes that in October 2024, the Applicant visited the Director’s offices and reported the occurrence of a fatal occupational accident involving her husband while in the course of his employment at the Respondent’s farm on 19th March 2024 in Segera Ward, Laikipia County. 29.He states that, notwithstanding the fact that notification of the accident was made outside the period prescribed under the Work Injury Benefits Act, the Director took the initiative of writing to the Respondent requesting formal notification through the prescribed ML/DOSH Form 1. 30.Mr. Okeyo further avers that the duly completed ML/DOSH Form 1 relating to the late Shem Sogota Manyoro Kennedy was delivered to the Director’s office in November 2024 by a managerial employee of the Respondent. 31.He denies the allegation that the Director failed to conduct the requisite inquiries into the accident. According to him, investigations were undertaken and included two meetings with Benson Okoth, a managerial employee of the Respondent, as well as one meeting with the Respondent’s Managing Director, Robert Ongeri. 32.He states that during those engagements, the Respondent’s management was advised on two occasions to upload details of the accident onto the Director’s online portal to facilitate processing of the claim. Several follow-up telephone calls were subsequently made without success, prompting the Director to proceed with processing the claim. 33.Mr. Okeyo further deposes that the Director rendered a determination on 30th April 2025 and dispatched the same to the Respondent through Wells Fargo Courier on the same date. He avers that the parcel was delivered on 2nd May 2025 at 12:25 p.m. and was received by one Zipporah Ongeri, a director of the Respondent company. He therefore contends that the Respondent’s assertion that it was never served with the determination is untrue and made in bad faith. 34.According to Mr. Okeyo, the compensation assessed at Kshs. 1,584,000/= was neither excessive nor arbitrary, having been computed in accordance with Section 30(1) and (2) of the Work Injury Benefits Act. 35.He further avers that following the Director’s determination, the Respondent failed to lodge any dispute, objection, or appeal in the prescribed form within 60 days as required under the Work Injury Benefits Act. He states that when the Respondent later sought to initiate the process, it was informed that the statutory period had already lapsed. 36.In the absence of a valid objection from the Respondent, Mr. Okeyo states that the Director maintained the decision that the sum of Kshs. 1,584,000/= constituted the compensation payable to the dependants of the late Shem Sogota Manyoro Kennedy. 37.Mr. Okeyo disputes the Respondent’s contention that the Director was under a legal obligation to involve the employer in the decision-making process leading to the assessment of compensation. In his view, no provision of the law expressly requires such participation. 38.He maintains that the Respondent failed to comply with the statutory procedure governing objections to the Director’s decision. 39.Mr. Okeyo further avers that the Director acted lawfully and in compliance with the Constitution, the Fair Administrative Action Act, and the Work Injury Benefits Act, and that any prejudice suffered by the Respondent arose solely from its failure to pursue the prescribed dispute-resolution mechanisms within the timelines provided by law. 40.The Applicant opposed the Respondent’s Motion through a Replying Affidavit sworn on 10th December 2025. She deposes that the Respondent was fully aware of the investigations conducted by the Director and of the ensuing assessment of compensation, and was afforded an opportunity to participate in the process but neglected and/or refused to do so. 41.She further avers that the Respondent’s claim that it only became aware of the Director’s determination upon service of the enforcement proceedings is false, misleading, and intended to frustrate the administration of justice. She contends that the Director duly notified the Respondent of the award on 30th April 2025, immediately after it was made. 42.Ms. Nyaruri further avers that the Respondent has never lodged any objection against the Director’s decision in the manner prescribed by law. 43.She contends that the Respondent has failed to offer any satisfactory explanation for its inaction or failure to challenge the decision within the statutory timelines. 44.The Applicant further states that she has been advised by her advocate, which advice she believes to be true, that the Respondent is undeserving of the equitable relief sought, having failed to act diligently and now seeking to delay, obstruct, and defeat the enforcement of a lawful administrative determination. 45.She maintains that, no valid challenge having been mounted against the Director’s decision, the same remains lawful, binding, and enforceable. Submissions 46.The two Applications were disposed of by way of written submissions. All the parties, save for the Director, filed their submissions, which the Court has considered. 47.The Applicant submits that the Respondent was duly served with the Director’s award dated 30th April 2025 and was therefore fully aware of its existence. She further contends that the Respondent, having been the party that notified the Directorate of the accident, had ample opportunity to participate in the process and to challenge the said decision within the statutory timelines. According to the Applicant, the Respondent failed to do so and instead remained inactive. 48.Relying on the decision in Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025), the Applicant submits that the Respondent’s application seeking leave to lodge an objection against the Director’s award out of time is misconceived, untenable, and devoid of legal merit. 49.The Applicant further submits that the Director’s award dated 30th April 2025 has neither been objected to nor appealed against by the Respondent in accordance with the law. Consequently, she argues that the award remains valid, binding, and enforceable, and is ripe for adoption by this Court. In support of this proposition, she relies on the decisions in Atswenje v Butali Sugar Mills Ltd (Employment and Labour Relations Cause E004 of 2024) [2024] KEELRC 2636 (KLR) (24 October 2024) and Walala v Guardian Coach Limited; Directorate of Occupational Safety and Health Services (Respondent) (Judicial Review Application E065 of 2024 & Miscellaneous Application E345 of 2024) [2025] KEELRC 792 (KLR) (14 March 2025). 50.The Respondent, on its part, urges the Court to interrogate whether the process culminating in the Director’s decision dated 30th April 2025 violated its constitutional right to a fair hearing and the principles of natural justice. It contends that apart from completing and submitting DOSH Form 1, it was neither involved in any investigation nor accorded a hearing before the impugned decision was rendered. 51.The Respondent has further submitted that the nature of the investigation by the Director into the Applicant’s claim results in a resolution of a dispute by application of law, and therefore cannot be conducted arbitrarily or merely administratively but is legally bound to comply with the principles and rules governing the resolution of such disputes. 52.In support of its submissions, the Respondent invites the Court to consider the decision in Onyango Oloo v Attorney General (Civil Appeal No. 152 of 1986) [1987] KECA 56 (KLR). 53.It is the Respondent’s position that Sections 10 and 30 of the Work Injury Benefits Act regarding compensation for permanent disablement such as death, do not leave room for the possibility that the employee may have authored his own misfortune but place a strict and inescapable liability on the employer for the accident and merely require the Director to mechanically compute the compensation payable. 54.In the Respondent’s view, the Work Injury Benefits Act should be reinterpreted in favour of the non-derogable right to fair hearing and fair administrative justice guaranteed to every legal actor at every stage of a legal adjudication process. Analysis and Determination 55.Having carefully considered the two Notices of Motion, the parties’ respective affidavits, together with the rival submissions, the Court distills the following issues for determination:a.Whether the Respondent has demonstrated sufficient cause to warrant an extension of time within which to file an objection against the Director’s decision dated 30th April 2025.b.If the answer to (a) is in the affirmative, whether further proceedings in Nyeri ELRC Misc. Application No. E042 of 2025 should be stayed pending the hearing and determination of the intended objection to the Director’s decision dated 30th April 2025; andc.Depending on the determination in (a), whether this Court should adopt and enforce the award made by the Director on 30th April 2025. Extension of time 56.Under Section 51(1) of the Work Injury Benefits Act, a person aggrieved by a decision of the Director is entitled, within 60 days of the decision, to lodge an objection against the same. 57.It is apparent that, in the present case, the Respondent did not lodge an objection to the Director’s award within the timelines prescribed under Section 51(1) above. It is for this reason that the Respondent filed the Notice of Motion dated 3rd November 2025 seeking, inter alia, leave to file the objection out of time and an order staying the proceedings in Nyeri Misc. Application No. E042 of 2025. 58.It is settled that the enlargement of time constitutes an equitable remedy which is not granted as a matter of course, but only where a party demonstrates sufficient cause to the satisfaction of the Court. 59.In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court set out the guiding principles to be considered by a court in the exercise of its discretion to extend time as follows: –a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;c.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the Respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 60.In the present case, the Respondent contends that upon filing DOSH Form 1 with the Director, it did not receive any communication regarding investigations into the workplace accident and was not invited to any hearing on liability or compensation. The Respondent further states that it was taken by surprise upon being served with the application for enforcement of the Director’s decision, and that it only became aware of the said decision through the Notice of Motion dated 26th September 2025. 61.In response, the Director avers that investigations were undertaken, including two meetings with the Respondent’s managerial employee, Benson Okoth, and one meeting with the Managing Director, Robert Ongeri. The Director has further stated that the Respondent’s management was on two occasions advised to upload the accident details onto the online portal to facilitate processing of the claim, but failed to do so, necessitating the Director to proceed with the determination of the claim. 62.The Director further deposes that the decision dated 30th April 2025 was duly transmitted to the Respondent via Wells Fargo Courier and was delivered on 2nd May 2025 at 12:25 p.m., where it was received by one Zipporah Ongeri, a director of the Respondent company. 63.In support of this position, the Director annexed a copy of the courier delivery book and a delivery receipt from Wells Fargo, confirming that the parcel was received and signed for by Zipporah Ongeri on the stated date and time. 64.It is worth noting that the Respondent did not controvert the Director’s assertion regarding service of the decision dated 30th April 2025. Specifically, the Respondent did not challenge or disown the signature of Zipporah Ongeri appearing on the Wells Fargo delivery receipt. 65.The foregoing discounts the Respondent’s assertion that it only became aware of the Director’s decision upon being served with the enforcement proceedings. 66.It is therefore incorrect for the Respondent to contend that its failure to lodge an objection within time was occasioned by lack of knowledge of the Director’s decision. 67.From the material placed before the Court, it is evident that the Respondent was served with and became aware of the Director’s decision as at 2nd May 2025. However, no plausible explanation has been offered as to why an objection was not lodged within the statutory timelines prescribed under Section 51(1) of the Work Injury Benefits Act. 68.It is trite that a party seeking extension of time must place before the Court cogent, credible, and satisfactory reasons, duly supported by evidence, to justify the delay. In the present case, the Respondent has failed to meet that threshold. It is also well settled that extension of time is an equitable remedy, granted only at the discretion of the Court and to deserving parties. 69.In view of the foregoing, the Court finds that the reasons advanced by the Respondent for the delay are not satisfactory to warrant the exercise of discretion in its favour. 70.In light of the foregoing finding, the second issue for determination is rendered moot, and the Notice of Motion dated 3rd November 2025 collapses. Merit in the Motion dated 26th September 2025 71.The record bears that the Director made an award in favour of the Applicant on 30th April 2025. Seeing that the Respondent has failed to challenge the said decision within the timelines prescribed under Sections 51(1) and 52 of the Work Injury Benefits Act, this Court finds no basis for declining the Applicant’s prayer for adoption of the Director’s award. 72.Consequently, the Court makes the following final orders:a.The Notice of Motion dated 26th September 2025 is hereby allowed, and the Applicant is awarded the sum of Kshs. 1,584,000/= being the amount assessed by the Director on 30th April 2025.b.Interest on the said sum shall accrue at court rates from the date of this Ruling until payment in full.c.The Notice of Motion dated 3rd November 2025 is hereby dismissed in its entirety with costs to the Applicant.d.The Respondent shall bear the costs of these proceedings. DATED, SIGNED AND DELIVERED AT NYERI THIS 12TH DAY OF JUNE 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Applicant Ms. WsikeFor the 1st Respondent No appearanceFor the Director No appearanceCourt Assistant NdatiOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.