The applicant filed an application dated 2 September 2025 seeking to enforce the award of the Director of Occupational Safety and Health Services (DOSH) dated 13 May 2022 for the sum of Ksh. 2,112,000 plus reasonable burial costs of Ksh. 648,400 together with costs and interests.
The applicant supports the application on the grounds that the deceased suffered work-related injuries on 21 April 2022 while employed by the 1st respondent as a mechanic. The 1st respondent submitted DOSH form 1 to the Director, who assessed it and made an award of Ksh. 2 112,000. Notice was served upon the respondents who have failed to make payment within the statutory timelines.
Under section 34 of the Work Injury Benefits Act (WIBA), the applicant incurred reasonable burial expenses of KSh. 648,400, which are payable by the respondents.
The applicant avers that despite the respondents being made aware of the DOSH assessment and ward, they did not file objections or appeal and have failed to make payment to the deceased estate.
In reply, the 2nd respondent filed a Replying Affidavit of Symon K. Lariak, the assistant manager, legal department and avers that it was the insurer of the 1st respondent within the WIBA provisions.
The 2nd respondent is aware of the DOSH award, but it is not enforceable for want of jurisdiction as held in Syhprose Amakobe Athoya v Uhuru Heights Ltd [2024] eKLR; Lameck Nyakundi Anyona v WJJ Kenya Construction Company Limited [2022] eKLR.
The claim advanced against the 2nd respondent is not tenable, in law, since there is no legal or statutory obligation under WIBA upon the 2nd respondent to settle the award assessed by DOSH. The 2nd respondent''s responsibility to make any payment is not statutory but must stem from a contractual obligation between the insurer and insured under a contract of insurance. There is no relationship with the applicant or the deceased.
The applicant submitted that the court has the requisite jurisdiction to hear the matter and enforce the DOSH award. Rule 69 of the Employment and Labour Relations Court (Procedure) Rules mandates the court in its original jurisdiction to enforce any claims under WIBA.
The 2nd respondent is enjoined in these proceedings as the insurer to avoid multiplicity of suits.
The 2nd respondent submitted that there is no right in enjoining it as a party in these proceedings. There is no privity of contract between the parties. The court lacks the necessary jurisdiction to determine this matter against the 2nd respondent, who should be removed from any liability.
Determination
On the question of the judgment of the 2nd respondent in these proceedings, under section 7 of WIBA, every employer is under a statutory duty to secure insurance cover for work-related injuries. That duty is bolstered under section 26(4) and (6) of WIBA, where an insurer secured under section 7 is liable to make payment upon injury to the employee while at work:
(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.
(5) …
(6) An employer or an insurer who fails to pay the compensation claimed under
this subsection commits an offence and shall on conviction be liable to a fine
not exceeding five hundred thousand shillings or to imprisonment for a term not
exceeding one year or to both.
The 2nd respondent has admitted through the affidavit of Symon Lariak that the 1st respondent enjoyed an insurance cover with them at the time of the deceased''s work injury and demise. There is a joint liability to settle the award of DOSH dated 13 May 2022.
On the challenge to the court''s jurisdiction and the cited cases, the matter is now resolved in Charles v Cheto, Civil Appeal E046 of 2022 [2025] KECA. The Court of Appeal held that under WIBA, the court has original jurisdiction to enforce work injury enforcement claims, hear any appeal and secure the rights of all employees on the shop floor. Therefore, under Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, parties holding a DOSH award can only enjoy the fruits thereof upon a decree of the court.
The respondents are jointly and severally liable to pay the applicant the sum of KSh. 2,112,000 awarded under DOSH on 13 May 2022.
On the burial costs, under section 34 of DOSH, the applicant is entitled to reasonable burial expenses. In this regard, the applicant filed various documents:
- Receipt dated 25 April 2022 for chairs and tents at KSh. 205,900.
- Receipt dated 27 April 2022 for catering services at KSh. 224,200.
- Receipt dated 26 April 2022 for rice and spices at KSh. 85,000.
- Receipt dated 29 April 2022 for flowers at KSh. 2,200.
- Receipt dated 26 April 2022 for a coffin at KSh. 27,000.
- Receipt dated 25 April 2022 for various food staff at KSh. 68,100.
- Receipt dated 27 April 2022 for a hearse at KSh. 23,000.
- Receipt dated 28 April 2024 for cement at KSh. 6,300.
- Receipt dated 27 April 2022 for burial clothes at KSh. 6,500.
Reasonable expenses for burial would necessitate a coffin, clothes, flowers, a grave, and transport. This adds up to Ksh. 65,000.
Accordingly, application dated 2 September 2025 is with merit and the following orders issued:
- The DOSH award of 13 May 2022 is adopted as the final order of the court against the respondents jointly and severally to make the following payments to the applicant;
- Compensation ksh. 2,112,000.
- Burial costs ksh.65, 000.
- Awards above to be paid within 30 days after which, costs shall accrue to be assessed by the court.
Delivered in open court at Mombasa, this 23rd day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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