https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1638

Mukiza (Suing for and on Behalf of the Estate of Wilfred Mutamba Etambo (Deceased) v Winguards Services Limited & another (Miscellaneous Application E006 of 2025) [2026] KEELRC 1638 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1638 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Miscellaneous Application E006 of 2025 DN Nderitu, J June 11, 2026 IN THE MATTER OF: ENFORCEMENT OF THE AWARD OF THE DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH SERVICES, KAKAMEGA AND IN THE MATTER OF: SECTIONS 10(1), 19(2) AND 51 OF THE WORK INJURY BENEFITS ACT CAP 236 AND IN THE MATTER OF: ARTICLES 27(1) & (2), 41(1) AND 162(2) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT AND THE INHERENT POWERS OF THE COURT AND IN THE MATTER OF: RULE 69 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT [PROCEDURE] RULES, 2024 Between Sarah Kayeli Mukiza (Suing for and on Behalf of the Estate of Wilfred Mutamba Etambo (Deceased) Applicant and Winguards Services Limited 1st Respondent Kenyan Alliance Insurance Company 2nd Respondent Ruling I. Introduction 1.The Applicant through Odunga &Associates Advocates filed a Notice of motion (the application) dated 25th July 2025 seeking for the following orders – 1.Spent. 2.The Honorable Court be pleased to adopt as judgment of the Court, the assessment/award of the Director of Occupational Safety and Health Services, Kakamega, made on 12th July 2024; 3.A Decree do issue for – a.The sum of Kshs2,880,000/- being the Director's award/assessment made on 12th July 2024;b.Reasonable burial expenses for Kshs648,900/-; andc.Interests on the assessed/awarded sum at court rates (14%) from the date of the award (12th July 2025) until payment in full. 4.Costs of this Application be awarded to the Applicant. 2.The application is expressed to be brought under Article 162 of the Constitution, Section 12 of the Employment and Labour Relations Court Act, Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Section 19(2) and 51 of the Work Injury Benefits Act, Order 40 and 51 of the Civil Procedure Rules, 2010 Articles 159(2)(d) of the Constitution; 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.Upon service of the application the 1st Respondent, through Kathambi Rwito & Co. Advocates filed a replying affidavit sworn by Caleb Otieno, the human resource manager of the 1st Respondent, on 26th November 2025, with several annexures thereto, in opposition to the application. 5.The 2nd Respondent through Owiti & Kiarie Advocates LLP filed a replying affidavit sworn by Jane Wairimu, the legal officer of the 2nd Respondent, on 7th October 2025, with several annexures thereto, in opposition to the application. 6.In answer to the 2nd Respondent’s replying affidavit, the Applicant filed a supplementary affidavit sworn by herself on 7th November 2025. 7.The 2nd Respondent also filed a supplementary affidavit sworn by Jane Wairimu on 13th January 2026. 8.By consent and upon directions by the court, the application was canvassed by way of written submissions. Mr. Weloba for the Applicant filed written submissions dated 21st October 2025, Ms Mwangi for the 1st Respondent filed submissions dated 7th October 2025, while Ms Tambo for the 2nd Respondent filed written submissions dated 5th November 2025 and the supplementary submissions dated 13th January 2026. II. The Evidence 9.In the supporting and supplementary affidavits by the Applicant, it is deponed that the deceased, Wilfred Mutamba Etambo, while in employment the 1st Respondent as a Supervisor, sustained fatal work-related injuries. The matter was reported to the Directorate of Occupational Safety and Health Services (DOSH) in Mombasa. Upon assessment, the deceased was obviously found to have suffered 100% permanent incapacity and, on 12th July 2024, the Director issued DOSH/WIBA Form 4 directing the Respondents to compensate the estate of deceased the in the sum of Kshs2,880,000/=. The Applicant further claims funeral expenses of Kshs648,900/= under Section 34 of the Work Injury Benefits Act (WIBA). 10.The Applicant depones that despite the statutory requirement under Section 26(4) of WIBA for payment to be effected within 90 days of the assessment, the Respondents failed, refused, and or neglected to make the payment. No objection or appeal was lodged by the 1st Respondent within the prescribed 60 days. A demand letter issued by the Director on 23rd June 2025, requiring settlement within 14 days elicited no response from the 1st Respondent. The Applicant further deposes that the 2nd Respondent, without the Director’s approval and contrary to Sections 25(1), 23, 28, 30, 36 and 37 of WIBA, unilaterally assessed the claim at Kshs1,435,000/= paid this reduced amount to the 1st Respondent, and obtained a discharge voucher in breach of Section 19(2) of the Act. 11.The Applicant contends that the 1st Respondents’ failure to comply with the Director’s award constitutes a criminal offence under Section 26(6) of WIBA. She further asserts that the non-payment infringes on her constitutional rights under Articles 27 & 41 of the Constitution and violates her legitimate expectation that the assessed compensation would be paid within the statutory timelines. She therefore seeks the assistance of the Court in enforcing the Director’s award. 12.In its response as contained in the replying affidavit, the 1st Respondent disputes the date of the death, asserting that he died on 25th December 2023 and not 29th December 2023 as alleged, and that the death had already been reported to the 2nd Respondent and its agents on 27th December 2023. He depones that several attempts were made to secure payment of the Director’s award of Kshs2,880,000/= but the 2nd Respondent issued a discharge voucher for only Kshs1,435,000/= that was calculated using an incorrect monthly salary of Kshs15,000 instead of the actual salary of Kshs30,000. 13.The deponent avers that he disputed the reduced amount via email on 8th October 2024 and only executed the discharge voucher on 17th January 2025 after being advised by the agents of the 2nd Respondent that the wording of the policy precluded any further payment. He further contends that the 2nd Respondent failed to respond to subsequent requests to utilise the Employer’s Liability cover of Kshs1,800,000/= to meet the shortfall. 14.It is further deposed that the claim for funeral expenses of Kshs648,900 as unreasonable and excessive, stating that the WIBA policy provides a maximum of only Kshs30,000 for funeral expenses, which amount was already paid to the Applicant in January 2024. The deponent maintains that the receipts annexed by the Applicant are misleading and exaggerated. 15.In the circumstances, the 1st Respondent prays that the Application be dismissed for lack of merit or, in the alternative, that the Court directs the 2nd Respondent to settle the balance of the award from the available Employer Liability cover. 16.For the 2nd Respondent, it was deposed that at all material times the 1st Respondent maintained an insurance cover with the 2nd Respondent covering employees who suffered injuries or death in the course of employment. 17.It is deponed that following notification by the 1st Respondent that the deceased had succumbed to injuries sustained in a road traffic accident while on duty on 25th December 2023, the 2nd Respondent investigated the claim and assessed compensation payable under the cover in the insurance policy. 18.It is deposed that the 2nd Respondent paid a total sum of Kshs1,435,000/= to the 1st Respondent in full and final settlement of the claim arising from the accident. It further stated that the 1st Respondent executed a discharge voucher on 7th October 2024 acknowledging receipt of the said amount and discharging the 2nd Respondent from any further liability under the policy. Consequently, the deponent maintained that the 2nd Respondent had fully discharged its contractual obligations and bore no further liability to either the Applicant or the 1st Respondent. 19.In response to the supplementary affidavit and the 1st Respondent’s replying affidavit, the deponent clarified that the 1st Respondent held two distinct insurance covers namely, Employer’s Liability Insurance Policy and a Work Injury Benefits Insurance Policy. It is deponed that the Employer’s Liability Policy sets a maximum liability limit of Kshs1,800,000/= and did not entitle the insured or employees to an automatic or double compensation of that amount under both policies. It is further deposed that the compensation payable was dependent on the employee’s salary and other policy terms. 20.The 2nd deponent denied allegations that it had applied an incorrect salary in calculating the compensation asserting that it relied on the information supplied by the 1st Respondent, which declared the salary of the deceased at Kshs15,000/= per month. It emphasized that the insurance policies imposed an obligation upon the employer to notify it of any salary changes and that no such notification was ever made before the settlement of the claim. The deponent therefore maintained that any alleged underpayment could not be attributed to the 2nd Respondent. 21.Regarding funeral expenses, it is stated that the applicable policies capped funeral benefits at Kshs30,000/= which amount was paid in full. Liability for the additional burial expenses as claimed by the Applicant is denied and emphasized that the 1st Respondent had acknowledged receipt of both the funeral benefit and the compensation in full and final settlement of all claims arising from the impugned accident. 22.The deponent consequently urged the Court to find that the 2nd Respondent had fully performed its obligations under the insurance policies, that no further claim lay against it, and that the application as against it was baseless, misconceived, and an abuse of the court process, warranting dismissal with costs. III. Submissions 23.Counsel for the Applicant identified the issues for determination as – Whether the 2nd Respondent had powers to unilaterally change and/or reduce the director’s award of Kshs2,880,000/=; and, Whether the reliefs sought should be granted? 24.On the first issue, counsel submitted that the DOSH assessed compensation payable to the Applicant at Kshs2,880,000/= vide DOSH/WIBA 4 dated 12th July 2024. It is further submitted that the award remains valid and enforceable as neither of the Respondents lodged an objection or appeal against the same. Counsel contends that the 2nd Respondent acted unlawfully by conducting its own investigations, reassessing the claim and, reducing the compensation to Kshs1,435,000/=, contrary to the provisions of WIBA. 25.According to the Applicant’s counsel, the statutory mandate to investigate occupational accidents, assess liability, determine the degree of incapacity and compute compensation is exclusively vested in the Director under Sections 23, 28, 29, 30 & 37 of WIBA. It is further submitted that even where a further medical examination is undertaken, the report thereof must be submitted to the Director for consideration and the same shall not be used by an insurer to unilaterally vary the assessment by the Director. 26.It is submitted that having failed to invoke the statutory objection and appeal mechanisms provided under WIBA, the Respondents are bound by the Director’s award. Reliance is placed on the decisions in Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) for the proposition that the Director is the sole entity that is legally mandated to process and determine compensation arising from work injury claims. 27.On the issue of liability, counsel submitted that both the Respondents are jointly and severally liable to satisfy the award pursuant to Sections 7 & 26 of WIBA. Counsel points out that the 2nd Respondent admitted that the 1st Respondent had a valid insurance cover at the time of the accident and therefore bears liability together with the employer. It is further submitted that the claim for burial expenses amounting to Kshs648,900/= has not been disputed by either of the Respondents. Consequently, counsel urged the Court to enter judgment against the Respondents jointly and severally for the sum awarded by the Director together with burial expenses, costs, and interest. 28.Counsel for the 1st respondent submitted on three issues – Whether the 2nd Respondent is liable to pay the total award of Kshs2,880,000/=; Whether the 1st Respondent should pay the funeral expenses of Kshs648,900/=; and, Who should bear the Costs of the application. 29.It is submitted that although the Applicant seeks adoption of the award of Kshs2,880,000/= as a judgment of the Court, the liability for the outstanding balance rests with the 2nd Respondent. Counsel contends that upon receipt of the insurer’s assessment of Kshs1,435,000/=, it protested the amount and requested a re-evaluation. It is further submitted that despite the protest by the 1st respondent’s the 2nd Respondent insisted on execution of a discharge voucher and assured the 1st Respondent that the matter would be resolved. Counsel argued that the 1st respondent was misled into signing the discharge voucher and that the same should not operate to absolve the insurer from further liability. 30.Counsel cited Coastal Bottlers Ltd. v Kimathi Mithika (2018) eKLR in the support of the argument that the effect of a discharge voucher depends on the circumstances under which it was executed and whether it was voluntarily executed with the full knowledge of the relevant facts. Counsel submits that the discharge voucher was executed following the recommendation by the 2nd Respondent in spite of the express objection by the 1st Respondent to the amount offered and the same should not therefore bar further claims against the 2nd Respondent. 31.Counsel further submitted that under Section 26 of the WIBA both an employer and insurer against whom a compensation claim is lodged are obligated to settle the claim. Counsel cited Joash Shisia Cheto v Thepot Patrick Charles [2025] KECA 784 (KLR) in support of the proposition that although WIBA does not provide a specific mechanism for enforcing the Director’s award, such an award may be enforced through the Employment and Labour Relations Court. The Court is urged to compel the 2nd Respondent to satisfy the balance of the Director’s award, including through the Employer’s Liability Policy. 32.On funeral expenses, counsel for the 1st Respondent submitted that the Applicant was paid Kshs30,000/= under the WIBA policy and that Section 34(4) of WIBA only obligates an employer to meet reasonable funeral expenses. It is submitted that the claim for Kshs648,900/= has not been strictly proved and is excessive, urging the Court to find that the amount already paid is reasonable in the circumstances. 33.Consequently, counsel urged the Court to find the 2nd Respondent liable for the outstanding amount of compensation under the award by the Director and to award costs in to the 1st Respondent. 34.Counsel for the 2nd respondent submitted on two issues – Whether this honourable court should adopt the award by the Director of Occupational Safety and Health Services (DOSH) dated 12th July 2024 as a judgement of the court; and, Whether the 2nd respondent is liable to make any additional payments to the applicant. 35.It is submitted that the 2nd Respondent has no further liability to the Applicant, having fully discharged its obligations under the insurance policy. It is contended that following notification of the death the claim was assessed in accordance with the terms of the Group Personal Accident Policy and a sum Kshs1,435,000/= was paid to the 1st Respondent. Thereafter, the 1st Respondent executed a discharge voucher acknowledging receipt of the sum and releasing the 2nd Respondent from any further liability arising from the said accident under the insurance policy. 36.It is further submitted that the discharge voucher constituted a binding agreement of settlement and effectively discharged the 2nd Respondent from any further obligation. Counsel cited Lion’s Court Inn (K) Limited v Wambugu [2024] KEELRC 2192 (KLR), wherein the Court held that a settlement agreement entered into after a Director’s award is binding and discharged the employer from further liability under WIBA. Counsel further cited Lochab Transport Ltd v Kenya Arab Orient Insurance Ltd (1986) KEHC 23(KLR), wherein the Court held that a signed discharge voucher amounts to acceptance of an offer and creates a binding contract unless set aside for fraud, misrepresentation, or other equitable grounds. 37.Counsel further argued that the 1st Respondent’s subsequent dissatisfaction with the settlement does not invalidate the discharge voucher. It is submitted that the compensation was calculated using salary information supplied by the 1st Respondent at the inception of the policy and that any alleged underpayment arose from the 1st Respondent’s failure to accurately disclose the actual salary of the deceased. Counsel contends that an insurer is entitled to rely on the information supplied by the insured and cannot be faulted for inaccuracies attributable to the insured. 38.Counsel rejects the argument that the Employer’s Liability Policy entitles the 1st Respondent to additional compensation, submitting that the policy expressly provides that any benefits payable thereunder are subject to deductions of amounts already paid under the WIBA policy. It submitted that the Court cannot rewrite the terms of a contract freely entered into by the parties. Counsel cited National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (2001) KECA 362(KLR) in supporting the argument that courts are bound to enforce contracts as agreed by the parties. 39.Counsel further cited Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited (2015) KECA 793(KLR) and Britam General Insurance (K) Limited v George Otieno Odinga & Another (2024) KEHC 8253 (KLR) to the effect that a duly executed discharge voucher constitutes a binding compromise of a claim and bars subsequent claims in the absence of proof of fraud, coercion, misrepresentation or any other vitiating factor. 40.Accordingly, counsel submitted that it fully discharged its contractual obligations upon payment of Kshs1,435,000/= and execution of the discharge voucher and, therefore, the Court is urged to dismiss the application with costs. IV. Issues For Determination 41.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 who has not settled the award. The 2nd respondent asserts that it paid to the 1st respondent a total of Kshs1,435,000/= in compensation and Kshs30,000/= for funeral expenses based on the deceased’s monthly earnings of Kshs15,000/= as supplied by the 1st respondent. 42.It is not in dispute that the 1st Respondent neither objected to the award nor appealed, notwithstanding that it was duly notified and demanded to settle the same. The only contention is that the 2nd Respondent, the insurer, should top up the paid-out policy claim. Both the respondents object to the funeral expenses as being exaggerated. 43.Upon the court considering the evidence availed by way of affidavits and the arguments advanced in the submissions by counsel for the parties, the following issues commend themselves to the court for determination –a.Whether the Respondents are jointly and or severally liable for the settlement of the award of Kshs2,880,000/= made by DOSH.b.Whether the Applicant is entitled to the sum of Kshs648,900/= in funeral expenses as claimed.c.Costs. V. Liability 44.On the first issue, documents filed by the Applicant, particularly the Notice by Employer of an Occupational Accident (DOSH Form 1), clearly show that the deceased was an employee of the 1st Respondent as a supervisor in a construction site and that the cause of the death was a fatal head injury caused by a falling piece of wood. The 2nd Respondent is named on the said document as the 1st Respondent’s Insurer. 45.The issue of liability does not appear to have been 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 a fatal work injury to its employee (the deceased) and giving all the required employment details of the deceased. 46.Having assessed the compensation payable to the Estate of the deceased, the Director sent his decision (DOSH/WIBA4) and demand for payment dated 12th July 2024 to the 1st Respondent. The 1st Respondent did not object to the award pursuant to Section 51 of WIBA. The assessed sum of Kshs2,880,000/= payable to the estate has not been settled by the 1st Respondent as awarded and demanded. 47.The 1st Respondent opines that having taken out an insurance policy with the 2nd respondent, the 2nd respondent ought to fully settle the entire award. The court finds and holds that the impugned insurance policy is a contract between the insured (the 1st Respondent) and the insurer (the 2nd Respondent). The insurance policy constitutes a commercial agreement between the Respondents, and any dispute arising therefrom can only be determined by an appropriate court. This court (ELRC) has no jurisdiction over that subject matter. 48.Further the court finds and holds that the 1st Respondent is fully liable to settle the award, as there was no privity of contract between the deceased employee or his estate and the 2nd Respondent. The award by DOSH was solely made against the 1st Respondent and, in the absence of any appeal or objection, the 1st Respondent is solely responsible for ensuring that the same is settled. If the 1st Respondent feels as it indeed does, that the 2nd Respondent ought to settle the same, it has the right to claim or enforce indemnity or reimbursement. VI. Funeral Expenses 49.As far as the court understands the arguments herein, the 1st Respondent takes the view that under its WIBA policy only Kshs30,000 was payable for funeral expenses, which amount was already paid to the Applicant in January 2024. The Applicant seeks Kshs648,9900/= in funeral expenses, an amount that the Respondents consider to be excessive. The Applicant did not object to the 1st Respondent’s assertion that she was paid Kshs30,000/=. This limit is as per the insurance policy between the Respondents and has nothing to do with the amounts that this court may award. 50.It is a fundamental principle and presumption of the law that there is no legal wrong without a remedy – Ubi jus ibi remedium. Although the Minister has not formulated the regulations envisaged under Section 34 of WIBA, the court cannot and should not sit back and fail to remedy and compensate the Applicant albeit only for fair, just, reasonable, and lawful expenses incurred in the burial and funeral of the deceased. 51.It is not in dispute that the remains of the deceased were indeed interred. For sure, some expenses were incurred in the burial for a death that was directly related to his employment with the 1st Respondent. The court has for sure to order reasonable compensation for genuine and necessary burial expenses that were incurred. 52.The court has gone through the receipts provided by the Applicant in support of the expenses incurred in the funeral. While the Respondents did not challenge for the makers of the said receipts and documents to appear in court and or swear affidavits in support of the claimed payments, the court notes that some of the receipts are neither in the names of the Applicant nor can the makers be ascertained, as they simply indicate ‘Cash sale’ without the merchant’s or supplier’s name. 53.This court has held time and again that funerals and burials should not be turned into feasts. In most African cultures and traditions mourners are fed and tents pitched for days or weeks. There is also no dispute that the body must have been preserved, a grave dug, the body clothed and transported for burial. 54.Doing the best that I can in the circumstances, the court awards a sum of Kshs300,000/= as further reasonable expenses incurred for the burial/funeral. This is over and above the Kshs30,000/= already paid to the Applicant. 55.The 1st Respondent is free to claim indemnity or reimbursement from the 2nd Respondent in the appropriate forum as that is not and should not be the subject matter before this court. VII. Ordersi.The Notice of Motion by the Applicant dated 25th July 2025 is hereby allowed as hereunder –a.The award of Kshs2,880,000/- made by the Director is hereby adopted and judgment entered therefor in favour of the Applicant against the 1st Respondent.b.The Applicant is hereby awarded a sum of Kshs350,000/= being reasonable funeral expenses.c.The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.d.The award in (b) above shall attract interest from the date of this ruling till payment in full.e.Costs of the application to the Applicant.f.A decree shall issue accordingly. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11THDAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC KAKAMEGA