Makanda v China State Construction Engineering Corporation Limited (Miscellaneous Application E294 of 2025) [2026] KEELRC 1513 (KLR) (4 June 2026) (Ruling)

Makanda v China State Construction Engineering Corporation Limited (Miscellaneous Application E294 of 2025) [2026] KEELRC 1513 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1513 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E294 of 2025 ON Makau, J June 4, 2026 Between Richard Wambani Makanda Applicant and China State Construction Engineering Corporation Limited Respondent Ruling 1.This Ruling relates to the Notice of Motion dated 15th August 2025 brought under Article 50(1) and 159(2)(d) of the Constitution, section 3A of the Civil Procedure Act, Order 1Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules. It seeks the following orders:a.That this application be certified urgent and admitted to priority disposal.b.That the Honourable Court be pleased to adopt the Decision of the Director of Occupational Safety and Health Services made in Claim Reference No. WIBA/KBU/809/022/023 as Judgement and Decree of this Court.c.That the Honourable Court be pleased to enter Judgement for the Claimant as against the Respondent for Ksh. 1,977,365.00 as assessed by the Director of Occupational Safety and Health Services made in Claim Reference No. WIBA/KBU/809/022/023 together with interest from the date of the award at court rates until payment in full.d.That the Honourable Court be pleased to award any other relief it deems fit and just in the Circumstances.e.That the costs and interest of this Application be awarded to the Claimant. 2.The Motion is supported by Affidavits sworn by the Applicant, Richard Wambani Makanda, on 15th August 2025 and on 16th January 2026, and it is opposed by two Affidavits sworn on 16th September 2025 and 9th September 2025 by the Respondent's EHS Manager, Morine Muthukia. The Motion was disposed of by written submissions. Facts 3.The Applicant, was employed by the Respondent as an Environmentalist. On 14th February 2023, he sustained injuries while in the course of his employment and the matter was reported to Gakoe Police Station. He was treated and the injury was assessed as Harm by the Medical In-charge Igegania Level 4 Hospital on 22nd May 2023 as per the P3 Form marked "RM-2". 4.On 3rd April 2023, the Respondent lodged a claim with the Directorate of Occupational Safety and Health Services (DOSH) on behalf of the Applicant under Claim Reference No. WIBA/KBU/809/022/023. Dr. Charles Karuno Kariuki, a DOSH-certified doctor, assessed the Applicant at 15% Degree of Permanent Total Disablement as appears on DOSH Form 1 marked "RM-3". 5.On 8th June 2023, the Director of Occupational Safety and Health Services (hereinafter "the Director") assessed the compensation due and awarded the Applicant Ksh. 1,977,365.00 and issued a Demand to the Respondent to make the said payments as per DOSH Form 4. 6.Upon receipt of the demand and DOSH Form 4, the Respondent engaged their Insurers, Britam Insurance Company Limited, who issued a letter dated 4th August 2023 to the Insurance Agent advising that payment be made for the Temporary incapacitation only, and let the Applicant undergo a second medical examination after 12 calendar months to ascertain the actual degree of Permanent Total Disablement. 7.By a letter dated 7th August 2023, the Respondent lodged an Objection to the Director's Decision made on 8th June 2023. The respondent objected to the degree of permanent incapacitation of 15% to the applicant and sought for another medical assessment. Again the matter went into a limbo for a couple of months. 8.By a letter dated 1st February 2024, the Respondent's Insurer, recommended the Insurance Agency to refer the Applicant to undergo a medical review by Dr. P.M. Wambugu. The Applicant availed himself and was examined by Dr. Wambugu on 26th February 2024. The doctor reviewed him and prepared a Medical Legal Report in which he ruled out any total permanent incapacitation and concluded that the Applicant had sustained soft tissue injuries, which had fully recovered. 9.On 1st October 2024, a Mr. Paul K. Bett communicated a decision on behalf of the Secretary of the Occupational Safety and Health Services in which it was found that the Objection by the Respondent was filed out of time and therefore the relief sought was declined. As such the impugned decision was upheld and the Respondent directed to pay the Applicant. 10.On 15th October 2024, the Respondent applied for review of the decision of 1st October 2024 and by a letter dated 25th October 2024, the review was granted on condition that section 25 (1) of WIBA be complied with by 14th November 2024. In default the impugned decision would subsist. 11.By a letter dated 13th November 2024, the Respondent asked for approval of medical examination on the Applicant on 2nd December 2024 and the request was allowed on condition that its doctor’s medical report is availed by 11th December 2024. The Respondent referred the Applicant back to Dr. Wambugu who declined to prepare another report stating that his opinion in the report he prepared in February 2024 remained the same. 12.By a letter dated 15th January, 2025, David Odieki for the Secretary of OSHS wrote to the respondent communicating a decision that the award of the Kshs. 1,977,326 to the Applicant had been upheld after the Respondent’s failure to avail its doctor’s medical report as per the leave granted vide the letter dated 18th November 2024. 13.The Respondent wrote a letter dated 8th April 2025 requesting the Director for a review the Applicant by DOSHs doctors at the Work Injury Evaluation Clinic (WIEC) whose opinion and prognosis would be more acceptable by applicant and the Insurance company. The request was not granted and instead Fartun Adan, from OSHS wrote a letter dated 2nd May 2025, inviting the Applicant and the Respondent, to a full hearing on 21st May 2025. 14.Both parties attended the physical hearing on 21st May 2025 and on 27th May 2025, the Director OSHS communicated his decision upholding the initial assessment of 8th June 2023. He further directed the Respondent to pay the Applicant, within 90 days, the full compensation assessed on 8th June 2023. He also directed that his decision was final and binding unless appealed under section 52 of WIBA. 15.The Respondent did not lodge any appeal within the prescribed time and the Applicant filed the instant Notice of Motion dated 15th August 2025 seeking adoption and enforcement of the Director's decision. 16.On 16th September 2025, the Respondent filed an application in ELRCA/E318/2025 asking this court for leave to appeal out of time. The Marete J heard the Application for leave and dismissed it on 9th December 2025 as per the Ruling annexed as "RM-1" in the Applicant's Supplementary Affidavit sworn on 16th January 2026. 17.The Applicant’s case is that the court should adopt and enforce the Directors Award as prayed since it is not subject to any challenge. However, the Respondent opposes the application on the grounds that this Court lacks jurisdiction to enforce awards emanating from the Director of Occupational Safety and Health Services as the Work Injury Benefits Act, the Employment and Labour Relations Court Act, and the Employment Act do not donate such jurisdiction to the Court. It further averred that the application is prematurely filed since the decision has been challenged by an objection before the Director OSHS and an appeal in ELRCA/E318/2025 before this court. 18.Having considered the instant Motion, the rival Affidavits and submissions, the main issues for determination are:-a.Whether this Court has jurisdiction to adopt and enforce the Director's decision.b.Whether the motion is prematurely filed.c.Whether the Applicant is entitled to the remedies sought. Analysis Jurisdiction 19.The Respondent contends that this Court lacks jurisdiction to enforce awards emanating from the Director of Occupational Safety and Health Services. The Respondent submits that there is no provision in the Work Injury Benefits Act, the Employment and Labour Relations Court Act, or the Employment Act which allows the Court to enforce the compensatory awards of the Director. 20.The Applicant, on the other hand, relies on the decision of the Court of Appeal in Charles vs. Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) where the Court held that: -“ 44.As the learned Judge correctly observed, there is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes…” 21.The Court went on to hold that:-“In this case, the learned Judge correctly observed that section 51 and 52 of the WIBA are silent on the avenues for redress for a party who becomes aware of the proceedings before the Director after the time for lodging an objection and/or filing an appeal has lapsed. We agree with the learned Judge that the solution in such circumstances would be to lodge a Motion for Judicial Review to quash the award before adoption by the court, and on first seeking to have the adoption proceedings stayed. Notably, the appellant sat back and took no steps to that end.” 22.I am bound by the above decision which has now settled that, this Court has the inherent jurisdiction to adopt, as judgment, the award of the Director for purposes of execution. It follows that the jurisdiction of the ELRC under WIBA includes, appellate jurisdiction, Judicial Review and the jurisdiction to adopt and enforce the final award of the Director. It is therefore, up to the concerned parties to chose wisely, which path to travel after receiving the director’s award. Premature application 23.The Respondent alleged that that the decision of the Director which is the subject matter in the instant motion, is also the subject matter in the appeal in ELRCA/E318/2025 pending before this court, and objection proceeding pending decision before the Director of OSHS. However, the record is clear that, there is no appeal pending before this court since the Respondent’s Application for leave to appeal out of time was dismissed vide the Ruling dated 9th December 2025. 24.As regards the alleged objection proceeding pending before the Director OSHS, the Applicant rightly contended that there is no such proceedings pending before the Director. By the decision communicated vide the letter dated 27th May 2025, the Director firmly stated as follows:-“Upon careful review of the oral and written submissions, documentary evidence, and the legal provisions of the Work Injury Benefits Act 2007, the following decisions are hereby rendered:1.…2.…3.On the required Action:The employer is hereby directed to pay the full compensation as computed by the Directorate on 8th June 2023…4.Final Directive:This decision shall be deemed final and binding unless appealed as provided under section 52 of the Work Injury Benefits Act, 2007.” 25.I agree with the Applicant that there is no objection proceedings pending before the Director. The Director made it clear that the objection proceedings had come to an end and his decision was final and binding unless successfully challenged by way of an appeal under section 52 of the Act. No appeal was filed under section 52 of the Act. Therefore, I hold that the application is not premature as all the statutory process has exhausted and a final decision presented before the court for adoption. Reliefs sought 26.In view of the foregoing, I find that the applicant has demonstrated that the Director’s award dated 8th June 2023 and confirmed by the Director’s decision on the respondent’s objection proceedings on 27th May 2025, is ripe for adoption and enforcement by this court. Consequently, I hold that the applicant is entitled to the orders sought in the Notice of Motion dated 15th August 2025 and allow it as prayed. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 4TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Mwalaa for ApplicantMwai for Njuguna for Respondent