https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2307

Kundu v Vineyard International Company Ltd & 3 others (Miscellaneous Application E004 of 2025) [2026] KEELRC 2307 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2307 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Miscellaneous Application E004 of 2025 DN Nderitu, J July 30, 2026 Between Samson Kundu Applicant and Vineyard International Company Ltd 1st Respondent Directorate of Occupational and Safety And Health Services 2nd Respondent Naitiri Sugar 3rd Respondent and Kennidia Assurance Company Limited Third party Ruling I. Introduction 1.The Applicant, through Wanjiru Ngulukyo & Co. Advocates, filed a Notice of Motion (the application) dated 14th March 2025 seeking for the following orders –1)Spent.2)An order adopting the assessment by the Director of Occupational Safety and Health Services as a judgment of the Court.3)A decree for Kshs. 429,946/= in accordance with the assessment of the Director of Occupational Safety and Health Services.4)A declaration that the respondents have committed an offence by failing to pay the applicant, contrary to section 26(6) of the Work Injury Benefits Act.5)That the Honourable Court be pleased to award interest on the amount from the date of assessment until payment in full.6)The cost of this application be provided for. 2.The application is expressed to be brought under Article 159 & 162(2) of the Constitution, Section 22,24,25, 26 & 43 of the Work Injury Benefit Act, Section 12 of the Employment and Labour Relations Court Act, and all enabling provisions of law. 3.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. 4.The 1st Respondent entered appearance through K. W Nakitare & Co. Advocates and filed a Replying Affidavit sworn by Wayne Sikuku, the human resources manager, on 14th May 2025. The affidavit was accompanied with an application dated 13th May 2025 seeking the joinder of Kenindia Assurance Company Limited. The application is supported with an undated supporting affidavit sworn by Wayne Sikuku. The 2nd Respondent did not enter appearance. 5.Upon service of the application, the 3rd Respondent, through O & M Law LLP, filed a replying affidavit sworn by Eunice Owuor, the Manager- Legal and Insurance Services, on 3rd April 2025, with several annexures thereto. 6.By consent and upon directions by the court, the application was canvassed by way of written submissions. Ms. Wanjiru for the Applicant filed written submissions dated 25th April 2025 while Ms. Kwena for the 3rd Respondent filed written submissions dated 3rd April 2025. The 1st Respondent did not file written submissions. II. The Evidence 7.In the supporting Affidavit, the Applicant deponed that he was subcontracted by the 1st Respondent as a tractor driver while working for the 3rd Respondent on a 12-month contract. He stated that on 2nd March 2024, while performing his duties, he sustained severe injuries resulting in the loss of his right thumb and fifth finger. It is deponed that the Applicant notified the employer of the accident and lodged a claim with the Directorate of Occupational Safety and Health Services (DOSH). The loss was assessed and compensation awarded at Kshs429,946/=. The Applicant stated that despite notifying the 1st Respondent of the award and issuing demand notices, the assessed compensation has not been paid. The Applicant therefore seeks for enforcement of the award by way of adoption of the same as a judgment of the Court, with interest and costs. 8.In a response contained in the replying affidavit of Eunice Owuor, the 3rd Respondent’s case is that it was not the employer of the Applicant and therefore bears no liability for the compensation awarded. It was deponed that in a contract dated 1st January 2023, the 3rd Respondent engaged the 1st Respondent to provide outsourced labour with the understanding that the 1st Respondent would employ the outsourced workers and procure work injury insurance for such workers. It is deposed that pursuant to that arrangement, the Applicant was employed by the 1st Respondent as a cane yard tractor-driver for a fixed term ending on 31st March 2024. 9.It is further stated that the documents filed with the application confirm that the 1st Respondent obtained a work injury insurance policy with Kenindia Assurance Company Limited (the intended Third Party). The 1st Respondent lodged a compensation claim with the insurer following the accident. It is therefore deposed that there was no employer–employee relationship between the Applicant and the 3rd Respondent and that the WIBA award was not made against the 3rd Respondent. 10.It is deponed that the Applicant has not pleaded or established a legal duty against the 3rd Respondent to warrant its inclusion in the proceedings and, it is deposed that the application against the 3rd Respondent is misconceived, amounts to an abuse of the court process, and the proceedings against the 3rd Respondent ought to be struck out with costs. 11.In the replying affidavit sworn by Wayne Sikuku, the 1st Respondent is opposed to the application. It is deposed that the application is incompetent, discloses no reasonable cause of action, and should be dismissed with costs. It is admitted that the Applicant was employed by the 1st Respondent as a tractor-driver under a contract dated 2nd January 2024 but it is alleged that his duties were limited to driving a tractor. It is averred that the Applicant sustained injuries while undertaking cane-tying which fell outside his assigned responsibilities and duties without express authority. 12.It is further stated that the Applicant’s claim was duly reported to the Third Party, the insurer, which is legally obligated to compensate the Applicant. The 1st Respondent, therefore, stated that the insurer is the proper party to satisfy the claim and urged the Court to dismiss the application against it with costs. 13.In the application to join the third-party, the 1st Respondent contends that if it is found liable to the Applicant, it is entitled to indemnity and/or contribution from the third party, which had insured it to cover work injury benefits at the material time. The 1st Respondent argued that the insurer is a necessary party for the fair and just determination of the matter and more so the question of liability as to who is supposed to settle the award. III. Submissions 14.Counsel for the Applicant identified the issues for determination as – Whether this Honourable court should enforce the award issued by the Director of Occupational Safety and Health Services; and, Who bears the costs of this application? 15.Counsel for the Applicant submitted that the Applicant sustained work-related injuries while in the employment of the 1st Respondent and that the DOSH assessed compensation and made an award of Kshs429,946/=. It is argued that despite being notified of the award, the Respondents neither lodged an objection under Section 51 of the Work Injury Benefits Act (WIBA) nor appealed against the assessment, rendering the award final and enforceable. Counsel therefore urged the Court to adopt the award as a judgment and accordingly issue a decree with costs and interest. 16.Counsel relied on Sections 10, 26, 51 and 52 of WIBA and cited the decisions in Omollo v Securex Agencies (K) Limited [2024], Samson Chweya Mwendabole v Protective Custody Limited [2021] eKLR, & Elijah Kisyanga Ndende v The Manager Zahkem International Construction Ltd [2022] eKLR, in support of the proposition that where no objection or appeal is lodged against an award under WIBA, the Employment and Labour Relations Court (ELRC) has the jurisdiction to adopt and enforce the award. 17.It is further submitted that the Applicant proved that the injuries occurred in the course of employment before the assessment and the award and hence the application should be allowed with costs. 18.Counsel for the 3rd Respondent submitted globally in opposition to the application. It is submitted that the Application for enforcement of the award lies only against the 1st Respondent, against whom the Director assessed compensation at Kshs429,946/=, and not against the 3rd Respondent. It is argued that there was no employer–employee relationship between the Applicant and the 3rd Respondent, the WIBA award was not made against the 3rd Respondent, and no claim was ever lodged against it under Section 26(6) of WIBA. 19.Counsel further submitted that the 3rd Respondent was not a party to the proceedings before the Director and was not afforded an opportunity to be heard before the assessment and award was made. Citing Ruth Wambui Mwangi & Another v Alfarah Wholesalers (2017) eKLR, Counsel submitted that jurisdiction enforcement of an award by WIBA lies with ELRC. Further, citing Kiai Mbaki & 2 Others v Gichuhi Macharia & Another [2005] eKLR, it is submitted that the 3rd Respondent should not be condemned without a hearing. 20.It is further submitted that the evidence on record shows the 1st Respondent had insured the Applicant with the Third Party, which was notified of the claim but failed to settle it. Consequently, any liability lies with the 1st Respondent or its insurer and not the 3rd Respondent. The Court is therefore urged to dismiss the application against the 3rd Respondent with costs. IV. Issues for Determination 21.The factual background 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, against the 1st Respondent. The 1st Respondent posited that the Third Party is responsible for settling the award, because the 1st Respondent took out insurance with the Third Party to indemnify it in the event of a work-related injury to the employees. 22.Upon the court considering pleadings filed and the evidence availed by way of affidavits and the arguments advanced in the submissions by Counsel for the Applicant and the 3rd Respondent, the following issues are for determination –a)Whether the Respondents and the intended Third Party are jointly and or severally liable for the settlement of the award of Kshs429,946/= made by DOSH.b)Costs. V. Liability 23.Under Sections 7 & 10 of WIBA, an employer has a legal duty to insure employees for work-related injuries. In this regard, the 1st Respondent took out an insurance policy with the Third Party to indemnify it in the event of a work-related injury to the employees. 24.Despite being served, the Third Party did not respond to contest the proceedings herein. However, the question of the liability of the intended Third-Party is exclusively between the 1st Respondent and the intended Third Party. As stated in Kenya Commercial Bank v Suntra Investment Bank Ltd (2015) eKLR, a third party is brought into proceedings at the instance of a defendant (respondent) in accordance with Order 1 Rules 15 to 22 of the Civil Procedure Rules. The court should only determine the liability, if any, as between the 1st Respondent and the intended Third Party only upon being satisfied that there is a proper issue to be tried and upon issuing directions under Order 1 Rule 22 of the Civil Procedure Rules. The Court did not issue such directions for the reasons contained below. 25.The contest between the 1st and 3rd Respondents is based on a commercial contract for provision of insurance services between them. It has nothing to do with the application filed by the Applicant in court seeking to enforce an award made by DOSH. 26.Accordingly, any dispute between the 1st Respondent and the intended Third Party finds jurisdiction in the appropriate commercial courts and not in the ELRC. 27.In any event, the joinder or otherwise of the Third Party does not affect the undisputed liability of the 1st Respondent to settle the award made to the Applicant. The award is enforceable against the 1st Respondent which is at liberty to seek indemnity or contribution from the intended Third Party based on the insurance policy/contract between them. The Applicant ought not be subjected to or delayed by dispute(s) between the 1st Respondent and the intended Third Party. 28.The 1st Respondent admitted to be the employer and acceded to having taken out an insurance policy with the intended Third Party to cover the employees. This factual status exonerated the 3rd Respondent from liability. 29.The court finds and holds that the 3rd Respondent was not a necessary or relevant party in these proceedings. 30.The 2nd Respondent is responsible for investigating and assessing compensation for work injuries and thus no liability accrues against it. There is no claim or allegation of impropriety or liability against it. Likewise, the court finds and holds that the 2nd Respondent was not a necessary party in these proceedings. VI. The Award 31.Documents filed by the Applicant, particularly the Notice by Employer of an Occupational Accident (DOSH Form 1), clearly show that the Applicant was an employee of the 1st Respondent as a tractor-driver and was injured when his finger was caught between a winch-lock and a winch-pulley, leading to a crush injury and amputation. 32.The issue of liability was not 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 the injury of its employee (the Applicant) and giving all the required details of his employment. That of itself settled the issue of the employment relationship and liability. 33.Having assessed the compensation payable to the Applicant, the Director communicated the decision (DOSH/WIBA4) and a demand notice for payment dated 26th June 2024 to the 1st Respondent. The 1st Respondent did not object to the award pursuant to Section 51 of WIBA. The assessed sum of Kshs429,946/= payable to the Applicant has not been settled by the 1st Respondent as awarded and demanded. 34.The court finds and holds that the 1st Respondent is fully liable to settle the award. There was no privity of contract between the Applicant and the intended Third Party in regard to the insurance cover/policy. The award by DOSH was solely made against the 1st Respondent and, in the absence of an appeal or objection, the 1st Respondent is solely and wholly responsible for payment and settlement by the same. VII. Ordersi.The Notice of Motion by the Applicant dated 14th March 2025 is hereby allowed as hereunder –a.The award of Kshs429,946/- made by the Director is hereby adopted and judgment entered therefor in favour of the Applicant against the 1st Respondent.b.The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.c.Costs of the application to the Applicant against the 1st Respondent.d.A decree shall issue accordingly. DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 30TH DAY OF JULY 2026.....................................DAVID NDERITUJUDGE