1. By their Notice of Motion application dated 10th October 2024, the Applicants seek orders that:-
a) This application is certified urgent, and service of the same is dispensed with in the first instance.
b) The Honourable court would be pleased to adopt the assessment of the Director of Occupational Health and Safety dated 27th June 2016 as an order of this court.
c) A decree do issue in accordance with the assessment of the Director of Occupational Health and Safety, together with interest at court rate from 27th June 2016 until payment in full, plus costs of this application.
2. The application is anchored on the grounds obtaining on the face of the application and those in the supporting affidavit sworn by Jackson Kyuma Musyia.
3. The Applicants contend that they are the legal representatives of the estate of the late Fredrick Musyoki Kyuma (the deceased), and have made this application in their capacity as such.
4. On the 16th April 2016, the deceased was involved in an accident in the course of his employment. He sustained fatal injuries.
5. Following the accident, they (the Applicants) lodged an accident claim with the respondent and the Director of Occupational Safety and Health services. Subsequently, the Director assessed the compensation payable on the claim, at Ksh. 2,802,240.00
6. On 27th June 2016, the Chief occupational Safety and Health Services notified the respondent of the assessment and required them to settle the same.
7. They further stated that the respondent has not objected to or appealed the Director's decision within the statutory period allowed under Section 51 of the Work Injury Benefits Act.
8. On 11th September 2024, the respondent was given 30 days to pay the awarded sum, but they never did.
9. They further contended that the Work Injury Benefits Act does not provide an enforcement mechanism for awards by the Director of Occupational Safety and Health Services if the employer neglects to pay.
10. The application was opposed based on the replying affidavit sworn by Christine Mukhove, a Fidelity Shield Insurance legal officer.
11. He stated that the Director assessed an award of Kshs 2,802,240 on 19th April 2026.
12. The salary of the deceased was Kshs. 29,190. Considering that this amount is below Kshs. 80,000, this matter should have been filed before the Magistrate’s Court by virtue of Section 29(3)(a) of the Magistrate Court Act 2015. This court does not possess jurisdiction to hear this application.
13. The assessment by the Director of Occupational Safety and Health Services that the Applicant seeks to enforce was made on 27th June 2016, outside the three-year limitation period set out in Section 90 of the Employment Act. The Applicant’s action is time-barred.
Analysis and Determination
14. There is no dispute that the Director of Occupational Health and Safety Services assessed Kshs. 2,802,240 as compensation payable following the death of the deceased, which resulted from injuries sustained in a workplace accident.
15. Undeniably, the respondent did not object to the Director’s award as contemplated under Section 51 of the Work Injuries Benefits Act. The award was not at all challenged via an appeal under Section 52 of the Act. Absent an objection and or appeal by the Respondent against the award, this Court’s jurisdiction to enforce the award in the face of the Respondent’s non-settlement of the same, has matured.
16. Since the respondent did not file an objection or an appeal against the award, the assessed amount became payable to the deceased's estate. The respondent neither asserts that they paid the assessed sum nor has a reasonable and justifiable reason for not paying it.
17. This court notes that the replying affidavit is sworn by a legal officer of an entity that is not a party to this proceeding. In my view, the affidavit is improperly filed and, as such, does not provide an answer to the applicants’ application and the supporting affidavit. In essence, the application is uncontested.
18. The respondent contends that this court lacks pecuniary jurisdiction to entertain and dispose of the present application, as it should have been filed before the Magistrate’s Court. This perspective is, with utmost respect, entirely erroneous. The law that currently permits magistrates to adjudicate certain employment cases did not remove this court’s original jurisdiction over such matters.
19. The Applicants having sufficiently demonstrated; the existence of the award by the Director in favour of the estate of the deceased; that the award has not been assailed in any of the ways provided for under the law and; that the Respondent has not settled the same to date, I return that they are entitled to the Orders sought.
20. In the upshot, I allow the Notice of Motion application dated 10th October 2024, with costs.
21. It is so ordered.
READ, DELIVERED AND SIGNED THIS 8th DAY OF May, 2025.
a) This application is certified urgent, and service of the same is dispensed with in the first instance.
b) The Honourable court would be pleased to adopt the assessment of the Director of Occupational Health and Safety dated 27th June 2016 as an order of this court.
c) A decree do issue in accordance with the assessment of the Director of Occupational Health and Safety, together with interest at court rate from 27th June 2016 until payment in full, plus costs of this application.
2. The application is anchored on the grounds obtaining on the face of the application and those in the supporting affidavit sworn by Jackson Kyuma Musyia.
3. The Applicants contend that they are the legal representatives of the estate of the late Fredrick Musyoki Kyuma (the deceased), and have made this application in their capacity as such.
4. On the 16th April 2016, the deceased was involved in an accident in the course of his employment. He sustained fatal injuries.
5. Following the accident, they (the Applicants) lodged an accident claim with the respondent and the Director of Occupational Safety and Health services. Subsequently, the Director assessed the compensation payable on the claim, at Ksh. 2,802,240.00
6. On 27th June 2016, the Chief occupational Safety and Health Services notified the respondent of the assessment and required them to settle the same.
7. They further stated that the respondent has not objected to or appealed the Director's decision within the statutory period allowed under Section 51 of the Work Injury Benefits Act.
8. On 11th September 2024, the respondent was given 30 days to pay the awarded sum, but they never did.
9. They further contended that the Work Injury Benefits Act does not provide an enforcement mechanism for awards by the Director of Occupational Safety and Health Services if the employer neglects to pay.
10. The application was opposed based on the replying affidavit sworn by Christine Mukhove, a Fidelity Shield Insurance legal officer.
11. He stated that the Director assessed an award of Kshs 2,802,240 on 19th April 2026.
12. The salary of the deceased was Kshs. 29,190. Considering that this amount is below Kshs. 80,000, this matter should have been filed before the Magistrate’s Court by virtue of Section 29(3)(a) of the Magistrate Court Act 2015. This court does not possess jurisdiction to hear this application.
13. The assessment by the Director of Occupational Safety and Health Services that the Applicant seeks to enforce was made on 27th June 2016, outside the three-year limitation period set out in Section 90 of the Employment Act. The Applicant’s action is time-barred.
Analysis and Determination
14. There is no dispute that the Director of Occupational Health and Safety Services assessed Kshs. 2,802,240 as compensation payable following the death of the deceased, which resulted from injuries sustained in a workplace accident.
15. Undeniably, the respondent did not object to the Director’s award as contemplated under Section 51 of the Work Injuries Benefits Act. The award was not at all challenged via an appeal under Section 52 of the Act. Absent an objection and or appeal by the Respondent against the award, this Court’s jurisdiction to enforce the award in the face of the Respondent’s non-settlement of the same, has matured.
16. Since the respondent did not file an objection or an appeal against the award, the assessed amount became payable to the deceased's estate. The respondent neither asserts that they paid the assessed sum nor has a reasonable and justifiable reason for not paying it.
17. This court notes that the replying affidavit is sworn by a legal officer of an entity that is not a party to this proceeding. In my view, the affidavit is improperly filed and, as such, does not provide an answer to the applicants’ application and the supporting affidavit. In essence, the application is uncontested.
18. The respondent contends that this court lacks pecuniary jurisdiction to entertain and dispose of the present application, as it should have been filed before the Magistrate’s Court. This perspective is, with utmost respect, entirely erroneous. The law that currently permits magistrates to adjudicate certain employment cases did not remove this court’s original jurisdiction over such matters.
19. The Applicants having sufficiently demonstrated; the existence of the award by the Director in favour of the estate of the deceased; that the award has not been assailed in any of the ways provided for under the law and; that the Respondent has not settled the same to date, I return that they are entitled to the Orders sought.
20. In the upshot, I allow the Notice of Motion application dated 10th October 2024, with costs.
21. It is so ordered.
READ, DELIVERED AND SIGNED THIS 8th DAY OF May, 2025.