Introduction
1. By a Statement of Claim dated 20th August 2024 the Claimant sued the Respondent for failure to pay him Kshs. 2,872,615 being the award of compensation awarded by the Director of Occupational Safety and Health Officer on 27th October 2022. Therefore the Claimant prays for the following reliefs:-
a) Principal amount of Kshs. 2,872,615 together with interest from 27th October 2022 till payment in full.
b) General damages.
c) Exemplary/Punitive damages.
d) Costs of this suit.
e) Interest on (a), (b) and (c) above at court rates.
f) Any other Relief that this Honourable Court may deem fit to grant in favour of the Claimant against the Respondent.
2. The Respondent did not enter appearance upon service of summons and pleadings. Therefore, the matter proceeded by formal proof on 25th February 2026.
Evidence
3. The Claimant testified as CW1 and adopted his written statement dated 20th August 2024 as her evidence in chief. He also produced 4 documents in the list dated 20th August 2024 as exhibits.
4. In brief, his evidence was that he lost his right hand while in the course of employment by the respondent on 11th May 2022 and the Director of Occupational Safety and Health assessed his compensation at Kshs. 2,872,615. Despite demand by the Director dated 27th October 2022, and the claimant’s counsel dated 10th June 2024, the respondent failed to pay the assessed compensation. Consequently, the claimant prays for the reliefs sought.
5. After the close of the hearing, the Claimant filed his written submissions dated 4th March 2026. Having considered the pleadings, evidence and submissions, the following issues fell for determination:-
a) Whether this Court has jurisdiction to enforce the award made by the Director of Occupational Safety and Health under the Work Injury Benefits Act, 2007.
b) Whether the Claimant is entitled to the reliefs sought.
Jurisdiction of the Court
6. The Claimant submitted that the issue of enforcement of awards made by the Director under the Work Injury Benefits Act has been addressed by the Court. The Claimant cited the case of Amir Swaleh Omar v. Mackenzie Maritime (EA) Limited [2022] eKLR where Nzei J observed that:-
“The Act (WIBA) is silent on how the awards of compensation made by the Director in favour of employees involved in occupational accidents or who suffer occupational diseases are to be enforced. At the same time, the Act does not expressly divest this Court of jurisdiction to enforce such awards; and especially where the award of compensation by the Director has not been objected to and the employer has refused to pay the assessed compensation. Did parliament intend that an employee caught up in such a situation would be left at the mercy of an employer who may choose either to pay or not to pay the assessed sum? I do not think so.”
7. The Judge further stated that:-
“Failure by an employer to pay demanded compensation that has been assessed by the Director and to which no objection has been lodged creates a dispute over a liquidated claim which this Court can entertain and determine.”
8. The Claimant also cited Article 50(1) of the Constitution of Kenya, 2010 which guarantees every person the right to have any dispute resolved through a fair and public hearing before a court or other independent tribunal.
9. The Claimant further cited the case of Msula v. Pwani Logistics Kenya Limited & another (Cause 175 of 2011) [2022] KEELRC 13538 (KLR) where the Court allowed a claim for enforcement of an award made under WIBA after the employer failed to satisfy the assessed compensation.
10. Having considered the law and the submissions made by the Claimant in the absence of the Respondent, I find that this Court has jurisdiction to enforce the award made by the Director of Occupational Safety and Health under the Work Injury Benefits Act, 2007. This jurisdiction is residual to the court without which alternative justice system will be a vanity.
11. I wish, however, to clarify that a party need not file a substantive suit to enforce a final award made under WIBA. It is sufficient to move the court by way of Notice of Motion as provided under Rule 69 of the Employment and Labour Relations Court Procedure Rules, thus:-
“(1)Where parties have entered into a conciliation, negotiations or mediation agreement, or are bound by arbitral award or lawful decision reached in Alternative Justice System, a party may file the award, decision or agreement for adoption and enforcement as an order of the Court.
(2)An application under sub-rule (1) shall be by way of a Miscellaneous application instituted through a notice of motion supported by an affidavit exhibiting the award, decision or agreement together with the relevant documents.”
The reliefs sought
12. The Respondent did not object to the Director's award nor did it lodge an appeal against the assessment as provided under section 51 and 52 of WIBA. The Respondent has simply refused and/or neglected to settle the compensation awarded.
13. The Claimant adduced uncontroverted evidence that he was employed by the Respondent as a driver in January 2016 and on 11th May 2022 when he was involved in a road traffic accident while in the course of his employment. He lodged a compensation claim under the Work Injury Benefit Act (WIBA) and the Director of Occupational Safety and Health Officer established that he had suffered 70% incapacitation. He further made a compensation award of Kshs. 2,872,615 and served a demand to the Respondent on 27th October 2022. During the formal proof on 25th February 2026, the Claimant produced 4 documents as exhibits to support his claim.
14. The Claimant is yet to be paid the compensation awarded by the Director of Occupational Safety and Health being Kshs. 2,872,615. Consequently, I find that the Claimant has proved on a balance of probability that he is entitled to the said sum of Kshs. 2,872,615.
General, and exemplary/punitive damages
15. The Claimant prayed for general damages and also exemplary/punitive damages for the suffering occasioned by the Respondent's refusal to settle the WIBA award. However, I regret to note that the jurisdiction of the court in this is case only limited to adoption and enforcement of the award as a decree of the court, and I cannot accept the invitation to stretch that power beyond what is allowed. I also belief an order to pay interest would be sufficient compensation for the delay in payment.
Interest
16. The Claimant prayed for interest on the principal amount from 27th October 2022 (the date of the Director's award) till payment in full, at court rates. In economics, imposition of interest on the principal debt is the cost or benefit of waiting for the payment. In this case, the claimant has been waiting for the respondent to pay the principal sum of Kshs. 2,872,615 from 27th October 2022. It is only fair that I award him interest at court rates, as prayed, from the said date till payment in full.
Conclusion
17. I have found that this Court has jurisdiction to adopt and enforce the award made by the Director of Occupational Safety and Health under the Work Injury Benefits Act, 2007. I have further found that the Claimant is entitled to some of the reliefs sought in statement of Claim. Consequently, I enter judgment for the Claimant against the Respondent for payment of the following:-
a) Principal amount (WIBA award).....................Kshs. 2,872,615/=
b) Interest on the (a) above at court rates from 27th October 2022 until payment in full.
c) The Claimant is awarded costs of this suit of Kshs. 15,000/-plus interest considering that the Claimant should have filed a Miscellaneous Application, and a suit.
DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.
Appearance:
Wanjiru for Claimant
No appearance for Respondent
| JUDGMENT IN ELRC CAUSE NO. E673 OF 2024. 8 |