Onyancha & another v Cotec Security Group Limited (Miscellaneous Application E024 of 2026) [2026] KEELRC 2238 (KLR) (31 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **MISCELLANEOUS APPLICATION NO. E024 OF 2026** 1. VINIC KERUBO ONYANCHA 2. RUTH NYABOKE ONGAGA (Suing as the personal representatives of the Estate of the late JAMES ONYANCHA ONGAGA…**APPLICANT** **VERSUS** COTEC SECURITY GROUP LIMITED……..…...…..……..**RESPONDENT** **RULING** 1. The Applicants are the personal representatives of the estate of the late James seek Onyancha Ongaga (Deceased) who succumbed to injuries sustained at the workplace on 29th October 2022 where he was working for the Respondent at the time when he was attacked and murdered. Consequently, the Applicants seek from this Court vide the notice of motion dated 13th May 2026, the following orders; 1. THAT this Honourable Court be pleased to adopt as its judgment the award of the Director of Occupational Health and Safety made on 22nd November 2022; 2. THAT judgment be entered for the sum of Kenya shillings Nine Hundred and Seventy Nine Thousand Two Hundred only (Kshs. 979,200/-) against the Respondent with interest at 14% from the date of assessment by the Director of Occupational Safety and Health. 3. THAT costs of this Application be borne by the Respondent. 2. In opposition, the Respondent filed a replying affidavit sworn by Josephine Anya its Human Resources and Administration Officer on 26th May 2026 opposing the prayers sought in the notice of motion. She depones that it was true and correct that the late James Onyancha Ongaga was an employee of the Respondent as at the time/date he met his untimely death as a result of which the Respondent duly completed and filed a Notice by Employer of an Occupational Accident/Disease of an Employee Form DOSH l which was forwarded to the County Occupational Safety and Health Officer. She deponed that as at the time of the accident/incident in which the deceased died, the Respondent had taken out an insurance cover with M/s First Assurance Company Ltd who were supposed to take up and settle the Work Injury Benefits computed by the County Occupational Safety and Health Officer. Her deposition is that however, the said insurer has raised several issues with the Respondent and have notified the Respondent of their intention to repudiate the insurance policy/cover allegedly on breach of the terms and/or conditions of me policy. She deponed that in order to avoid delays in the settlement of the Work Injury Benefits computed, the Respondent request the County Occupational Safety and Health Officer to identity the dependants who are supposed to receive the benefits in line with section 34 of the Work Injury Benefits Act (No. 13 of 2007) and the third schedule thereof. She depones that upon such computation, the Respondent be allowed and/or granted leave to liquidate the said benefits/compensation within a period of six (6) months at Kshs. 163,200/- per month with effect from end of June 2026 and thereafter at the end of each subsequent month until payment m full with a clause that execution to issue in case of default. 3. The motion was canvassed by way of written submissions. Applicants' submissions 1. The Applicants identify the sole issue to be determined to be 1. Whether this Honourable Court should adopt the award of the Director of Occupational Safety and Health made on 22nd November 2022 as its judgment? 2. The Applicants cite the decision of Radido J. (as he then was) in **Osino *v* China Civil Engineering Construction Corporation (K) Ltd [2025] KEELRC 1792 (KLR)** where the Learned Judge held that, *"The Employment and Labour Relations Court has the requisite jurisdiction to enforce awards by the Director of Occupational Safety and Health."* 1. The Applicants submit that in the instant case, the notice of motion was filed under the provisions of Rules 69 and 73 (4) of the Employment and Labour Relations Court Procedure Rules, 2024. The Applicants submit that they seek the enforcement of the award made by the Director of Occupational Safety and Health Officer (DOSH) was for a sum of Kshs. 979,200/-, which amount was to be paid by the Respondent (employer) to the deceased's (employee) dependents. The Applicants submit that the Respondent chose to ignore the several demands sent from DOSH requiring them to pay the Applicants the dues. Moreover, it was submitted the Respondent has expressly admitted that the deceased was its employee at the time of the accident and further admits that DOSH computed compensation payable under the Work Injury Benefits Act. It was submitted the Respondent does not challenge the validity of the award, the jurisdiction of DOSH, the computation of the compensation or the amount awarded. Having admitted the existence and validity of the award, there remains no dispute requiring determination save for its adoption by this Honourable Court. It was submitted that instead, the Respondent attributes its failure to settle the award to an alleged dispute with its insurer. The Applicants submit that explanation is legally untenable since any dispute between the Respondent and its insurer arises from a private contract to which the deceased and the Applicants herein were not parties. It was submitted that such a dispute cannot defeat or postpone the statutory rights of the Applicants to compensation under the WIBA. The Applicants submit that the Respondent remains solely liable to satisfy the DOSH award irrespective of any disagreement it may have with its insurer. Respondent's submissions 1. The Respondent submits that the application was opposed by its replying affidavit sworn on 20th May 2026 denying liability. It submitted that section 20 of the Work injury Benefits Act (WIBA) provides that; *"Compensation paid under this Act for the death of an employee shall not form part of the employee's estate".* 1. The Respondent submits that accordingly, and inasmuch as this application is brought by the Applicants in their capacity as the Administrators of the estate of the deceased, James Onyancha Ongaga, the same is incurably defective, and abuse of the process of the court and incompetent at the same time. It was submitted that section 26(4) of the Work Injury Benefits Act provides that; *"(4) An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim".* 1. The Respondent submits that the Act provides steps and a procedure of having the claim made and or settled. It submits that it is the Director of Occupational Safety and Health that presents the claim to the employer/or the insurance. The Respondent submits that the Applicants have not demonstrated that the Director of Occupation Health and Safety has ever made a claim and asked the Respondent or her insurance to make payments and or settle the claim. To this extent, it was submitted, the application is premature, incompetent and an abuse of the process of the court. The Respondent cites the case of **The Speaker of the National Assembly *v* Karume [2008] 1 KLR 426 (EP)**, where the Court of Appeal stated that, where there is a specific procedure provided for redress of grievances, that procedure ought to be strictly followed. The Respondent further cites the case of **Kimani Wanyoike *v* Electoral Commission Civil Appeal No. 213 of 1995 (UR)** where the Court of Appeal held:- *"... where there is a law prescribed by either a constitution or an act of* *Parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed".* 1. The Respondent also cites the case of **Diana Kethi Kilonzo *v* IEBC *&* 2 others [2013] eKLR** where the Court of Appeal held that: - *"We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities."* 1. The Respondent submits that section 26(5) of the Work Injury Benefits Act provides that; *"(5) The Director shall, within thirty days of receipt of the money claimed under subsection (1), pay the money to the employee who made the claim or his dependants.* 1. The Respondent submits that this means that the payments are made to the dependents of the employee in respect of who the accident was made. The Respondent submits that the Applicants have to establish that they were the only dependants of the deceased, as at the time of his death, and that they have not done so. The Respondent submits that the Applicants could fit within the definition of dependant under section 6 of the Work Injury Benefits Act but they must demonstrate that they are the only dependants. The Respondent submits that section 34 (1) of the Work Injury Benefits Act provides that if an employee dies as a result of an injury caused by an accident, compensation shall be paid to the dependants of the employee in accordance with the provisions of the Third Schedule, subject to the maximum and minimum amount determined by the Minister after consultation with the Council. The Respondent submits that the Third Schedule provides for the percentages of the compensation due and payable to the dependents. The Respondent submits that the Applicants have made this application without allowing the Director of Occupation Safety and Health to establish and determine the dependents of the deceased and what amount of the award/compensation is due to each of them. To this extent, it was submitted, this application is premature, is incompetent and incurably defective. The Respondent submits this Court should not entertain, hear and determine a defective application, and/or proceed to encourage parties to flout the procedure laid down by the law in a bid to make a shortcut to the compensation due under the Work Injury Benefits Act. The Respondent thus urges the Court to strikeout the application with costs to the Respondent. Disposition 1. The Work Injury Benefits Act has had a troubled past. The Act speaks of the advisory to the Cabinet Secretary in charge of Labour by the Council which is the National Council for Occupational Safety and Health. The National Council for Occupational Safety and Health (NACOSH) is established under section 27 of the Occupational Safety and Health Act. This is the body that is supposed to give the percentages of sums payable to dependants. The Respondent argues that the award made by the Director does not, in terms of section 20 form part of the estate of the deceased employee. The Court agrees. The import of the section is that the decedent cannot have listed as part of his estate in a succession cause the corpus of the sums awarded under the WIBA compensation. This is what the section means. It does not mean that the administrators of the estate of the deceased cannot pursue the claim for compensation before the Director or this Court. 2. The challenge on the enumeration of the percentage share to the beneficiaries of the estate of the deceased in terms of Third Schedule of the Act however colourful does not bar the settlement by the Respondent. In the replying affidavit of the Respondent, there is no denial of liability, there is an admission of the sum as owing to the estate and even a proposal on settlement of the sum by way of instalments. The Respondent made the objection to the award contrary to the provisions of section 52 of the Act. As held in the case of **Diana Kethi Kilonzo *v* IEBC *&* 2 others** *(supra)*where the Court of Appeal held that: - *"We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities."* [Emphasis supplied] 1. I am in agreement that I should not usurp the role of the Director of Occupational Safety and Health who should have received the complaint on the incompleteness of the claim as no fractions for the dependants had been included in terms of the Third Schedule. Any challenge by the Respondent to this award ought to have been made within 14 days of the award and because over 90 days have passed since the award was made, the only thing left is for the Respondent to settle the sum of Kshs. 979,200/- together with interest at court rates from the date of filing of the claim until payment in full. The Applicants shall be entitled to costs of the motion as well. 1. In sum, the application is allowed to the extent the decision of the Director Occupational Safety and Health is adopted as an order and decree of the court being a sum of Kshs. 979,200/-. Interest awarded on this sum at court rates from the date of this filing till payment in full. Costs to the Applicants. It is so ordered. **Dated in Kisumu on 30th July 2026 and delivered on 31st July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**