1. This ruling relates to the Applicant’s Notice of Motion application dated 31st July, 2025, brought pursuant to Articles 162(2) and 159 (2) of the Constitution, Sections 22, 24, 25, 26 and 53 of the Work Injury Benefits Act, 2007, Section 12 (1) of the ELRC Act, Section 87 of the Employment Act, 2007, Sections 1A & 1B, 3A and 63 of the Civil Procedure Act and Order 51 (c) of the Civil Procedure Rules. The Applicant seeks orders THAT: -
i. The compensation of Kshs 410,121.60 assessed by the Director of Occupational Safety and Health Services to the Applicant herein be adopted as the judgment of this court.
ii. A decree be issued in accordance with the assessment of the Director of Occupational Health and Safety (sic) in the sum of Kenya shillings Four Hundred and Ten Thousand, One Hundred and Twenty One Shillings, Cents Six Zero (Ksh. 410,121.60) with interest at 14% per annum from 18/03/2016.
iii. Costs of the application be paid by the Respondent.
2. The application is supported by grounds on its face and the supporting affidavit of Patrick Mwau Kimatu sworn on 31st July, 2025.
3. The Applicant states that he was employed by the Respondent as a Workshop Counter Clerk and suffered permanent hearing loss in his right ear due to prolonged exposure to noise from cutting and bending machines while at work.
4. He states that he received medical treatment, and a medical examination confirmed that he had suffered hearing loss, which injury was reported to the Directorate of Occupational Safety and Health Services (DOSHS), and which assessed his permanent incapacity at 7% and awarded compensation of Kshs. 410,121.60 under the Work Injury Benefits Act (WIBA).
5. The Applicant further avers that he demanded payment from the Respondent in March 2016 and issued follow up demands on 23rd August 2018 and 22nd November 2018, but the Respondent failed or refused to pay the assessed compensation and did not appeal the Director's assessment.
6. The Applicant contends that the Respondent's failure to settle the award within the statutory period violates Sections 26(4) and 26(6) of the Work Injury Benefits Act, which has necessitated the present application.
7. He therefore urges the Court to adopt the Director's assessment as a judgment of the Court and issue a decree for payment of the assessed compensation, arguing that the application is made in good faith and in the interests of justice.
8. The Respondent did not specifically oppose the application save for a notice of preliminary objection, which the Court earlier dismissed in a ruling delivered on 7th May, 2026.
Determination
9. The issue for determination is whether this Court should adopt the compensation assessed by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act (WIBA) as a judgment of the Court.
10. The evidence placed before Court shows that the Applicant sustained an occupational injury while in the course of his employment with the Respondent.
11. It is also evident that the injury was duly reported to the Directorate of Occupational Safety and Health Services in accordance with the provisions of the Work Injury Benefits Act, and following a medical assessment, the Director determined that the Applicant had suffered a permanent incapacity of 7% and assessed the compensation payable at Kshs. 410,121.60.
12. Further, no evidence was led to show that the Respondent invoked the statutory dispute resolution mechanism by lodging an objection or appeal against the Director's decision.
13. The legal effect of the statutory procedure under WIBA was authoritatively settled by the Supreme Court in Law Society of Kenya v Attorney General & Another; Kenya Federation of Kenya Employers (Interested Party), Katiba Institute & Another (Amicus Curiae) [2019] eKLR, where the Court upheld the constitutionality of WIBA and affirmed that claims for work injury compensation must in the first instance be processed by the Director.
14. In the present case, the Director exercised the statutory mandate under WIBA and assessed compensation payable to the Applicant. The Respondent has neither challenged the assessment nor demonstrated that the Director acted without jurisdiction or contrary to the provisions of the Act.
15. Having failed to utilize the statutory appellate mechanism, the Respondent cannot simply ignore or refuse to comply with the Director's lawful assessment.
16. This Court has variously held that where a Director's assessment remains unchallenged, the Court may exercise its jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act to facilitate enforcement by adopting the assessment as a judgment of the Court.
17. The Respondent's only response to the application was a Preliminary Objection, which this Court dismissed on 7th May 2026. No replying affidavit or grounds of opposition were filed to controvert the factual matters deposed to by the Applicant, hence the Applicant's evidence remains unchallenged.
18. In the circumstances, I am satisfied that the Applicant has established that the Director lawfully assessed compensation payable at Kshs.410,121.60, and there exists no legal impediment to the adoption of the Director's assessment as a judgment of this Court.
19. Consequently, the application dated 31st July 2025 succeeds, and the Director's assessment awarding the Applicant compensation of Kshs.410,121.60 is hereby adopted as a judgment of this Court.
20. A decree shall forthwith issue for the said sum together with interest at court rates from 31st July 2025 until payment in full.
21. The Applicant shall also have the costs of this application.
22. It is so ordered.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.
Appearance:
Mr. Masua Present for the Applicant
Ms. Lelu h/b for Mr. Mwihuri for the Respondent
Ms. Esther S- C/A
i. The compensation of Kshs 410,121.60 assessed by the Director of Occupational Safety and Health Services to the Applicant herein be adopted as the judgment of this court.
ii. A decree be issued in accordance with the assessment of the Director of Occupational Health and Safety (sic) in the sum of Kenya shillings Four Hundred and Ten Thousand, One Hundred and Twenty One Shillings, Cents Six Zero (Ksh. 410,121.60) with interest at 14% per annum from 18/03/2016.
iii. Costs of the application be paid by the Respondent.
2. The application is supported by grounds on its face and the supporting affidavit of Patrick Mwau Kimatu sworn on 31st July, 2025.
3. The Applicant states that he was employed by the Respondent as a Workshop Counter Clerk and suffered permanent hearing loss in his right ear due to prolonged exposure to noise from cutting and bending machines while at work.
4. He states that he received medical treatment, and a medical examination confirmed that he had suffered hearing loss, which injury was reported to the Directorate of Occupational Safety and Health Services (DOSHS), and which assessed his permanent incapacity at 7% and awarded compensation of Kshs. 410,121.60 under the Work Injury Benefits Act (WIBA).
5. The Applicant further avers that he demanded payment from the Respondent in March 2016 and issued follow up demands on 23rd August 2018 and 22nd November 2018, but the Respondent failed or refused to pay the assessed compensation and did not appeal the Director's assessment.
6. The Applicant contends that the Respondent's failure to settle the award within the statutory period violates Sections 26(4) and 26(6) of the Work Injury Benefits Act, which has necessitated the present application.
7. He therefore urges the Court to adopt the Director's assessment as a judgment of the Court and issue a decree for payment of the assessed compensation, arguing that the application is made in good faith and in the interests of justice.
8. The Respondent did not specifically oppose the application save for a notice of preliminary objection, which the Court earlier dismissed in a ruling delivered on 7th May, 2026.
Determination
9. The issue for determination is whether this Court should adopt the compensation assessed by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act (WIBA) as a judgment of the Court.
10. The evidence placed before Court shows that the Applicant sustained an occupational injury while in the course of his employment with the Respondent.
11. It is also evident that the injury was duly reported to the Directorate of Occupational Safety and Health Services in accordance with the provisions of the Work Injury Benefits Act, and following a medical assessment, the Director determined that the Applicant had suffered a permanent incapacity of 7% and assessed the compensation payable at Kshs. 410,121.60.
12. Further, no evidence was led to show that the Respondent invoked the statutory dispute resolution mechanism by lodging an objection or appeal against the Director's decision.
13. The legal effect of the statutory procedure under WIBA was authoritatively settled by the Supreme Court in Law Society of Kenya v Attorney General & Another; Kenya Federation of Kenya Employers (Interested Party), Katiba Institute & Another (Amicus Curiae) [2019] eKLR, where the Court upheld the constitutionality of WIBA and affirmed that claims for work injury compensation must in the first instance be processed by the Director.
14. In the present case, the Director exercised the statutory mandate under WIBA and assessed compensation payable to the Applicant. The Respondent has neither challenged the assessment nor demonstrated that the Director acted without jurisdiction or contrary to the provisions of the Act.
15. Having failed to utilize the statutory appellate mechanism, the Respondent cannot simply ignore or refuse to comply with the Director's lawful assessment.
16. This Court has variously held that where a Director's assessment remains unchallenged, the Court may exercise its jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act to facilitate enforcement by adopting the assessment as a judgment of the Court.
17. The Respondent's only response to the application was a Preliminary Objection, which this Court dismissed on 7th May 2026. No replying affidavit or grounds of opposition were filed to controvert the factual matters deposed to by the Applicant, hence the Applicant's evidence remains unchallenged.
18. In the circumstances, I am satisfied that the Applicant has established that the Director lawfully assessed compensation payable at Kshs.410,121.60, and there exists no legal impediment to the adoption of the Director's assessment as a judgment of this Court.
19. Consequently, the application dated 31st July 2025 succeeds, and the Director's assessment awarding the Applicant compensation of Kshs.410,121.60 is hereby adopted as a judgment of this Court.
20. A decree shall forthwith issue for the said sum together with interest at court rates from 31st July 2025 until payment in full.
21. The Applicant shall also have the costs of this application.
22. It is so ordered.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.
C. N. BAARI
JUDGE.
Appearance:
Mr. Masua Present for the Applicant
Ms. Lelu h/b for Mr. Mwihuri for the Respondent
Ms. Esther S- C/A