Jane Wambui Wanjahi AND Oliver Kinyanjui Wanjahi VS Dreamline Express Limited AND Trident Insurance Company Limited

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The applicant filed an application dated 5 September 2025 seeking to enforce the award of the Director of Occupational Safety and Health Services (DOSH) made on 15 November 2019 for the sum of Ksh. 6,480,000 and reasonable burial expenses of Ksh. 649,700 plus interests at 14% from the date of the award.

The application is supported by the applicant, Jane Wambui Wanjahi, who avers that the 1st respondent employed the deceased as a driver until his demise on 31 October 2019. Upon the demise, the matter was referred to DOSH, who assessed the compensation due on 15 November 2019 at KSH. 6,480,000. The respondents were issued with notice and have failed to make payments.

The applicants incurred burial expenses of Ksh. 649,700. Under section 34 of the Work Injuries Benefits Act (WIBA), the respondents are required to make reasonable payments for the burial of a deceased employee, which they have failed to do.

There were no objections arising from the DOSH award or any appeal.

In reply, the 1^st respondent filed the Replying Affidavit for Issa Awath, the operations manager, who admits to the employment relationship with the deceased and states that DOSH has since assessed the due compensation at KSh. 6,480,000 on 15 November 2019.

Awath avers that the insurer, the 2d respondent, is under a statutory duty to settle claims arising out of work injuries for its employees.

In this case, the respondents were unaware of the DOSH award because they were not notified, preventing them from filing objections or an appeal. The 1^st respondent was surprised that the assessment of the DOSH award was based on the deceased''s salary of Ksh. 67,000, yet he was earning Ksh. 30,000 per month.

Both parties attended court and made oral submissions.

The applicants submitted that there is no challenge by the 1^st respondent to the deceased''s employment relationship and that he suffered a fatal injury. The matter was reported to DOSH by the 1^st respondent, the employer, who indicated that the deceased was earning KSh. 67,000 per month as a driver. The averments in reply that the wage was KSh. 30,000 is not supported by any evidence. The respondents should jointly and severally settle the award with costs.

The 1st respondent submitted that they do not dispute that the 2nd respondent was the insurer. It maintained an insurer cover for its employees, and there is a statutory duty to pay the applicant the award. The enforcement of the award should be against the 2nd respondent, who has failed to respond to the application; they did not file objections or any appeal.

Determination

The 2^nd respondent is served but failed to attend or file any responses. However, the 1^st respondent in reply does not attach the policy/cover details it maintained with the 2^nd respondent. No details are offered on the nature of cover secured for employees'' work injury as required under sections 7 and 10 of WIBA.

As the employer, the 1^st respondent has a legal duty to keep work records for all persons on the shop floor, including drivers like the deceased. The failure by the 2^nd respondent to attend these proceedings does not relieve the 1st respondent, as the employer, of the legal duty to produce records under section 9 of WIBA.

The 1st respondent enjoyed an insurance cover for work-related injuries for its employees, which can be addressed appropriately.

Under DOSH Form 1 dated 7 November 2019, the 1^st respondent notified DOSH that the deceased was its former employee as a driver, and he was earning a monthly wage of Ksh. 30,000 plus allowances, for a total pay of Ksh. 37,000. Other expenses and earnings amounted to a gross income of Ksh. 67,500.

It would appear that the 1^st respondent applied the wage of Ksh. 30,000 plus the gross wage, inclusive of all allowances, and in tabulating the gross earnings, gave the total of Ksh. 67,500.

There is an apparent error in the tabulation of the gross wage earned by the deceased.

Indeed, in the affidavit for Awath for the 1st respondent, he avers that the correct wage earned by the deceased was ksh. 30,000 and not 67,500 per month.

There is a legal duty under the WIBA for the DOSH to make proper enquiries over matters reported to them. A mechanical application of the records without the advantage of the parties having a fair chance to make corrections would result in a matter such as herein. The role of the Director under WIBA is to facilitate parties in securing justice at the first instance and to allow proceedings similar to this case, where a driver’s wage is overstated at KSh. 67,500 instead of KSh. 30,000, should automatically raise concern. Otherwise, the apparent injustice would be visited against an employer keen to make a payment and settle a DOHS award.

Likewise, as a court of record, there is an inherent duty to facilitate access to justice through a proper assessment of DOSH awards.

Under section 43 of WIBA, a deceased employee, through the estate, is allowed to claim reasonable burial expenses. In this case, the applicants filed various records for burial expenses, including;

1. Receipt dated 7 November 2019 for coffin at ksh. 15,000;
2. Receipt dated 5 November 2019 for various food staff at KSh. 83,230.
3. Receipt dated 5 November 2019 for various food staff at KSh.  82,850.
4. Receipt dated 6 November 2019 for clothes for the deceased at KSh. 6,120.
5. Receipt dated 7 November 2019 for 4 bags of cement at KSh. 5,000.

From these records, reasonable expenses for the burial of the deceased would comprise costs for coffin, clothing and grave. These amount to Ksh.  15,000 + Ksh. 6,120 + Ksh. 5,000 = Ksh. 26,120.

Accordingly, there is an error in tabulating the award due to the incorrect wage application, which should not be applied. The matter shall revert to the DOSH, Mombasa, for a proper assessment. The following orders are issued:

1. The 1^st respondent to pay the award herein.
2. Reasonable burial costs awarded at KSh. 26,120.
3. On compensation due:
   1. Parties to return to DOSH, Mombasa, for a proper assessment of the award based on the correct salary of the deceased as at 31 October 2019.
   2. The 1^st respondent shall supply DOSH with the last payment statement of the deceased as at 31 October 2019.
   3. Where there is failure to address (c) (2) above, the DOSH shall apply the rate of Ksh. 37,000 and reassess the award accordingly with a report to the court.
   4. Parties to report back to the court on the correct assessment on 3 December 2025.
4. The ELRC Mombasa Deputy Registrar shall serve the Director, Occupational Safety and Health Services, Mombasa with the ruling and orders above.

Delivered in open court at Mombasa, this 23^rd day of  October 2025.

M. MBARŨ

JUDGE

In the presence of:

Court Assistant: Japhet

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