https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2329

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **IN THE MATTER OF THE ESTATE OF NELSON OBIERO SHAIDI (DECEASED)** **MISC APPLICATION NO. E326 OF 2025** **IN THE MATTER OF WORK INJURY BENEFITS ACT** **IN THE MATTER OF ADOPTION OF THE AWARD OF THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES DATED 14T DECEMBER 2023** **BETWEEN** **WINNIE MUGAZILA OKOTH………………….………….1ST APPLICANT** **HENRY ONYANGO……...………………………………….2ND APPLICANT** **VERSUS** **ELKAY & SONS BUILDERS LIMITED………….…………RESPONDENT** **RULING** **Background** 1. The Applicants filed the application dated 3rd September 2025 seeking the following orders:- 2. Spent. 3. That the court adopts the assessment by the Director of Occupational Safety and Health Services dated 14th December 2023 in the sum of Ksh. 2,304,000.00 as a judgment of the court. 4. That the court issues a decree for the aforesaid amount. 5. That the court awards the Applicants interest on the aforesaid amount from 14th December 2023 till the date full payment. 6. That the Respondent be ordered to pay costs of the application. 7. Before the application was determined Sarah Achieng Olweny (the intended Interested Party) filed the application dated 23rd September 2025 seeking the following orders:- 8. Spent. 9. That the court be pleased to join the intended Interested Party in the case. 10. That the intended Interested Party be allowed to file her reply and counter claim to the application. 11. That the court gives directions on costs of the application. 12. The application is supported by the grounds on the face thereof and the supporting affidavit sworn by the intended Interested Party. The intended Interested Party avers that she is the widow of Nelson Obiero Shaidi (the deceased employee). She avers that they sired one child (JAO) who was six years at the time of filing the application. 13. The intended Interested Party avers that the deceased employee died on 4th October 2023 following an industrial accident which occurred on 2nd October 2023. She avers that the benefits payable to the deceased’s dependants were assessed by the Director of Occupational Safety and Health Services (the Director) in the sum of Ksh. 2,304,000.00. 14. The intended Interested Party contends that the Respondent is ready to pay the aforesaid amount. However, she avers that there are fears that the money may be paid to the wrong persons. 15. The intended Interested Party asserts that the Applicants in the cause did not disclose to the court that she (the intended Interested Party) is the only wife of the deceased. She avers that the Applicants did not disclose to the court that JAO and herself are the rightful beneficiaries of the Director’s award. 16. The intended Interested Party asserts that the Applicants are not entitled to benefit from the Director’s award without her (the intended Interested Party’s) consent. As such, she contends that the court should grant her the order bringing her on board the case in the capacity of an Interested Party. 17. The Applicants and Respondent in the application dated 3rd September 2025 have all opposed the intended Interested Party’s application dated 23rd September 2025. They have filed their respective affidavits to anchor their opposition to the motion. 18. The Respondent’s affidavit is dated 2nd February 2026. The Respondent contends that the claim which is the subject of the dispute has already been settled by consent between it (the Respondent) and the Applicants. It contends that the three principal parties in the cause settled the matter through consent letters dated 15th September 2025 and 29th September 2025. 19. The Respondent avers that upon the aforesaid settlement, it (the Respondent) discharged its obligation under the consent fully as required under *the Work Injury Benefits Act*. As such, it avers that the application by the intended Interested Party should not be allowed as the matter is already settled. 20. On their part, the Applicants in the application dated 3rd September 2025 contend that the intended Interested Party was not the deceased employee’s spouse. They aver that the request by the intended Interested Party to be made a party to the action has in any event been overtaken by events since the compensation which was awarded to the deceased has already been paid out by the Respondent and distributed to the deceased’s dependants. 21. The Applicants have annexed a copy of cheque number 000102 dated 26th September 2025 for Ksh. 140,472.00 drawn in favour of the intended Interested Party’s advocates. They contend that the amount was paid to the intended Interested Party through her advocates as JAO’s share of the award by the Director. The cheque bears the intended Interested Part’s lawyer’s stamp to signify that she received it on 29th September 2025 albeit under protest. 22. When the matter came up for hearing of the application for adoption of the Director’s award, the advocates for the intended Interested Party asked that the application dated 23rd September 2025 be heard first since it proposes to introduce an additional party to the action. As such, the court gave directions that the motion be canvassed first. 23. The Applicants and Respondent in the motion dated 3rd September 2025 uploaded the consent letter dated 29th September 2025 through which they asked the court to record the following order:- 24. That the judgment sum of Ksh. 2,304,000.00 has been paid to the Applicants. 25. That the matter be marked as fully settled. 26. The effect of the aforesaid proposed consent is that the application dated 3rd September 2025 which sought to adopt the Director’s award as a judgment of the court to enable enforcement thereof has been spent. As a matter of fact, the parties to the application (the Applicants and the Respondent) asked the court to mark the motion as settled meaning that there is nothing that remains for the court to determine in it (the motion). 27. The role of the court in proceedings of this nature has been clarified by the Court of Appeal in the case of ***Charles v Cheto [2025] KECA 784 (KLR).*** The proceedings are meant to facilitate enforcement of the Director’s award against a reluctant employee. As such, the court which is approached with such application is not required or indeed entitled to inquire into any other matters. Its role is limited to either adopting or not adopting the award for purposes of enforcement. 28. A perusal of *the Work Injury Benefits Act* demonstrates that the law expects that once the Director has rendered his award and there has been no appeal against it or an appeal against it has been resolved as provided under sections 51 and 52 thereof, the employer may voluntarily settle the matter by making payment of the amount in the award to the employee or the employee’s dependants (see section 26 (4) of the Act). If the employer elects to handle the matter in this manner, then there would be no need for taking out enforcement proceedings such as the instant one. 29. Both the Applicants and Respondent and the intended Interested Party confirm that the Respondent has already released the amount in the award to the Applicants. The intended Interested Party confirms this fact through her written submissions dated 13th February 2026. 30. The Respondent (employer of the deceased employee) having voluntarily made payment of the amount in the award to the Applicants pursuant to section 26 (4) of *the Work Injury Benefits Act*, the need to enforce the award is obviated. As such, the application to adopt the Director’s award has been rendered otiose. 31. The foregoing being the case, what should be the fate of the request to introduce additional parties to the proceedings? Is there justification to introduce new parties to a matter which has been rendered moribund in the sense that nothing remains for the court to determine in the dispute? 32. Order 1 rule 10 of *the Civil Procedure Rules* provides for substitution and addition of parties to an action. The court may, either on its own motion or upon application, order that an individual be added as a party to an action. However, this is only permissible if it is apparent that the presence of such party is necessary for the effectual resolution of the dispute. 33. As noted earlier in this action, the principal parties to the claim appear to have compromised it thus rendering the matter otiose. As such, nothing remains outstanding in it for resolution by the court. That being the case, it will be a futile exercise to invoke the aforesaid provision of statute to add the proposed Interested Party to the action at this stage. 34. The court notes that the party seeking to be joined to the action seeks to be added as an Interested Party. In ***Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto (Supreme Court Petition-Application No. 11 of 2020)***, the Supreme Court, quoting from its earlier decisions, defined the term ‘’Interested Party’’ as follows:- *‘’…an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.’’* 1. From this definition, it is apparent that one can only seek to be joined as an interested party in an action if he is likely to be affected by the decision which the court will make. In effect, joinder of one as an interested party to a cause presupposes that the matter is still pending resolution by the court and that the anticipated court decision is likely to affect him. 2. In the cause before me, the principal parties have already settled the claim meaning that nothing remains for the court to adjudicate on. As such, there is no future decision which the court is expected to make and which may impact on the proposed Interested Party. The matter is already resolved and nothing remains pending except to close the file. 3. In the face of this reality, the court is of the considered view that introduction of Sarah Achieng Olweny as an Interested Party in the cause at this stage will serve no useful purpose since the principal parties sidestepped the enforcement proceedings when the Respondent voluntarily paid the Applicants the amount in the award. As such, the application for joinder of Sarah Achieng Olweny to the cause is, in effect, overtaken by events and fails. 4. The proposed Interested Party should consider other options available to her for purposes of pursuing settlement of the dispute relating to distribution of the amount which was paid to the Applicants. If she holds the view that the Applicants improperly received the payment, she has the option of approaching the appropriate court for appropriate reliefs. However, she cannot seek such reliefs through these proceedings which, as mentioned earlier, are solely confined to adoption of the Director’s award for purposes of enforcement against a reluctant employer. **Determination** 1. The upshot is that the court declines the application dated 23rd September 2025 seeking to join Sarah Achieng Olweny as an Interested Party in this action since the action has already been compromised by the principal parties and nothing remains in it for adjudication by the court. 2. The parties to the application to bear their own costs of the application. **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Applicants …………….for the Respondent …………….for intended Interested Party **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**