https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1979

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT KAKAMEGA** **MISC. APPLICATION NO. E002 OF 2025** **BETWEEN** **VERONICA MUKABANA WANGA……………...1ST APPLICANT** **DORICAH AKINYI………………………..….……2ND APPLICANT** **MOSES BABA………………………………..….....3RD APPLICANT** **VERSUS** **MUMIAS SUGAR COMPANY LIMITED……....... RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. The Applicants, through Keverenge A. A. Advocates, filed a Notice of Motion (the application) dated 26th January 2026 seeking for the following orders – 3. ***THAT judgment be entered in favour of the Applicants as per the award of the Director in the sum of Kshs1,729,108.00 (One million seven hundred and twenty-nine thousand one hundred and eight shillings).*** 4. ***THAT a decree be issued in accordance with the assessment and award of the Director of Occupational Health and Safety with accrued interest thereon.*** 5. ***THAT interest to accrue on the Director's award at 14% from the date when the award was communicated to the Respondent on 26th April 2019 until payment in full.*** 6. ***THAT costs of the application be paid by the Respondent.*** 7. The application is expressed to be brought under ***Rule 28(1)(b) &*** ***31 of the Employment and Labour Relations Court (Procedure)Rules 2016(now repealed); Section 12, 24 (5), & 87 of the Employment and Labour Relations Court Act, section 26 and 52 of the Work Injury Benefits act; Section s 1A, IA, & 3A of the Civil Procedure Act***; and ***Article 162(2) of the Constitution***;**and all enabling provisions of law.** 8. The application is based on the grounds on the face of it and supported with the affidavit of the 1st Applicant, sworn on even date, with several annexures thereto. 9. The Respondent did not enter appearance despite having been duly served. 10. When the matter came up for directions on 17th March 2026, the court directed that the application be canvassed by way of written submissions. Mr Keverenge for the Applicants filed written submissions dated 20th April 2026. 11. **THE EVIDENCE** 12. In the supporting affidavit, it is deposed that the Applicants are the widow and children of the late David Sanduku Nanjira, an employee of the Respondent as a Chemical (Environmental Health) Attendant. It is deponed that the deceased sustained fatal injuries in an occupational accident on 16th April 2019 in the course of his duties at work. 13. It is deposed that the accident was reported to the Directorate of Occupational Safety and Health Services (DOSH) and the compensation payable to the Applicants was assessed at Kshs1,729,108/= under the ***Work Injury Benefits Act (WIBA).*** It is deposed further that despite demand for payment, the Respondent failed to satisfy the award for over five years notwithstanding that no objection or appeal was lodged within the 60 days prescribed under ***Section 51 of WIBA.*** 14. **SUBMISSIONS** 15. Counsel for the Applicants identified the issues for determination as – *Whether the application dated 26th January 2026 should be deemed undefended; Whether this court has jurisdiction and powers to adopt the assessment of the Director of Occupational Safety and Health (DOSH); Whether this court should award interest on the Director's award from the date the award was made and communicated to the Respondent; and, Whether the Respondents should pay costs of this application?* 16. On the issue of jurisdiction, it is submitted that the Employment and Labour Relations Court (ELRC) has exclusive jurisdiction over employment and labour disputes under ***Article 162(2) of the Constitution, Section 12 of the Employment and Labour Relations Court Act*** and ***Section 87 of the Employment Act.*** Counsel argued that although ***WIBA*** does not expressly provide a mechanism for the enforcement of an award by DOSH, the Court has jurisdiction to enforce an unchallenged award. Counsel cited ***Langi v County Government of Nakuru [2023] KEELRC 2155 (KLR),*** and ***Luvinzu v Timsales [2024] KEELRC 857 (KLR)*** in support of the argument that the fact that the Respondent did not object to the assessment within the period prescribed under ***Section 51 of WIBA*** rendered the award final and enforceable. 17. Counsel further submitted that the documentary evidence, including the accident notification, certificate of dependency, and DOSH assessment, prove the claim and liability against the Respondent. 18. On the issue of interest, Counsel argued that under ***Section 26(4) of WIBA,*** compensation ought to have been settled within the prescribed period and that the Respondent has withheld payment for several years. Counsel cited ***Luvinzu v Timsales Limited (supra)*** and ***Langi v County Government of Nakuru (supra)*** wherein the Court awarded interest on DOSH awards from the date they were communicated to the employer until payment in full. 19. Citing ***Walala v Guardian Coach Limited; Directorate of Occupational Safety and Health Services ([2025] KEELRC 792 (KLR),*** and ***Section 27 of the Civil Procedure Act,*** Counsel submitted that costs follow event and ought to be awarded to a successful applicant seeking enforcement of an award by DOSH. 20. Accordingly, Counsel prays that the application be allowed as prayed with interest and costs. 21. **ISSUES FOR DETERMINATION** 22. The factual background to this application has been set out by the Applicants and their counsel as per the summary in the preceding parts of this ruling. The gist of the application is that the Applicants were awarded by ***DOSH*** as alluded to above against the Respondent, who has not settled the award. 23. There is no evidence that the Respondent objected to the award or appealed the same, notwithstanding that it was duly notified and demanded of it to settle the same. 24. Upon the court considering the evidence availed by way of the supporting affidavit and the arguments advanced in the submissions by Counsel for the Applicants, the following issues are for determination – 25. ***Whether the Respondent is liable for the settlement of the award of Kshs1,729,108/=******made by DOSH.*** 26. ***Costs.*** 27. **LIABILITY** 28. On the first issue, documents filed by the Applicants, particularly the Notice by Employer of an Occupational Accident (DOSH Form 1), clearly show that the deceased was an employee of the Respondent as a Chemical (Environment Health) Attendant and that the cause of the death was a fatal head injury caused by a fall from a height(ceiling) while he was undertaking a pest control exercise at his workplace. 29. The issue of liability was not in dispute before the Director, as the Respondent had already issued and sent a Statutory Notice by Employer to the Director (DOSH Form 1) reporting a fatal work injury of its employee (the deceased) and giving all the required employment details of the deceased. It is on the basis of this information that the assessment and the award was made. 30. Having assessed the compensation payable to the Estate of the deceased, the Director sent the decision (DOSH/WIBA4) and the demand for payment dated 26th April 2019 to the Respondent. The Respondent did not object to or appeal the award pursuant to ***Section 51 of WIBA***. The assessed sum of Kshs1,729,108/= wasapportioned equally among the three Applicants (Dependants) and has not been settled by the Respondent as awarded and demanded. The same is now overdue. 31. **ORDERS** 32. ***The Notice of Motion by the Applicants dated 26th January 2026 is hereby allowed as hereunder –*** 1. ***The award of Kshs1,729,108/=******made by the Director is hereby adopted and judgment entered therefor in favour of the Applicants against the Respondent.*** 2. ***The award in (a) above shall attract interest from the date the award was made by the Director till payment in full.*** 3. ***Costs of the application to the Applicants.*** 4. ***A decree shall issue accordingly.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 9TH DAY OF JULY 2026.** **....................................** **DAVID NDERITU** **JUDGE**