REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISCELLANEOUS NO. E027 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
ZABLON MANDILA NDOCHI ………………………APPLICANT
VERSUS
ROBINSON INVESTMENT LTD ALIAS ROBINSON SECURITY LTD ……………………………………………………RESPONDENT
RULING
Before the court for determination is the Applicant’s Notice of Motion dated 1st April, 2025 filed under Certificate of Urgency seeking Orders that: -
- Spent.
- The Honourable court adopts as its Judgment the award of the Director of Occupational Safety and Health dated 14th September, 2022.
- Judgment be entered for the sum of Kenya Shillings One Million Four Hundred and Forty Thousand (Kshs.1,440,000) against the respondent with interest at 14% from the date of assessment by the Director of Occupational Safety and Health and Services.
- Costs of this application be borne by the respondent.
The Notice of Motion is expressed under Rules 69 and 73(4) of the Employment and Labour Relations Court (Procedure) Rules, 2024 and is based on the grounds set out on its face and the Supporting Affidavit of Zablon Mandila Ndochi the applicant who deposes that the deceased was attacked at his place of work on 8th July, 2022 and succumbed from the injuries sustained and the death was reported to the Director Occupational Safety and Health Services and the Director awarded the deceased’s estate the sum of Kshs.1,440,000 payable to the dependant’s but the Director’s demand to the respondent was not honoured and 90 days had since lapsed and the amount remained outstanding occasioning loss to the deceased’s estate.
The affiant further deposes that a reminder dated 13th January, 2025 elicited no response and the respondent was unlikely to pay the sum without the court’s intervention.
Respondent’s response
Vide a Replying Affidavit sworn on 20th May, 2025, Mr. Stephen Mogusu Nyangwono deposes that the deceased was the employee of the respondent and was attacked at the workplace while asleep and died.
That the applicants had nothing to prove that they were dependants of the deceased.
That the respondent was not aware of the proceedings before the Director of Occupational Safety and Health Services until the instant application was filed.
The affiant admits that the respondent reported the death to its insurer which investigated the matter and no demand had been received from the applicant and could not appeal against a decision it was unaware of or demand for payment.
That the applicants could not seek compensation without letters of representation of the deceased’s estate.
That had the respondent been notified of the proceedings before the Director they would have followed up with its insurer.
The affiant further deposes that the insurer was to investigate the matter and settle the amount due.
In a Supplementary Affidavit sworn on 16th June, 2025, Mandila Ndochi deposed that the applicants were identified and confirmed as dependants of the deceased by the Deputy County Commissioner who supplied the names to the County Occupational Safety and Health Officer, who vide letter dated 7th August, 2022 informed the respondent of their duty to report the accident within 24 hours as prescribed by the Work Injury Benefits Act as a reminder, and were thus fully aware of the proceedings before the Director but refused or failed to participate and an assessment was made.
That the respondent did not attach the report generated by their insurer on the death of the respondent’s employee.
The affiant further deposed that the respondent was notified of the award vide letters dated 14th September, 2022 and 13th January, 2025 and the amount payable under the Work Injury Benefits Acts was not part of the deceased’s estate and the requirement of letters of representation did not arise.
In urging their case, the applicants relied on copies of letters from the Deputy County Commissioner’s office identifying them as dependants of the deceased and a letter from the chief dated 3rd December, 2024.
The applicants also attached copies of letters from the Directorate of Occupational Safety and Health Services dated 7th August, 2022 reminding the respondent to report the death formally and one Carolyne received the letter on the same day. A second letter dated 14th September, 2022 addressed to Robinson Investment Ltd related to the assessment by the Director and a reminder dated 13th January, 2025.
Strangely, the respondent did not provide any evidence in support of its case.
Applicant’s submissions
As to whether the court ought to adopt the award by the Director of Occupational Safety and Health Services, counsel cited the sentiments of Radido J in O. Sino V China Civil Engineering Construction Corporation (K) Ltd [2025] KEELRC 1792(KLR) that this court had jurisdiction to do so.
Reliance was also placed on the provisions of Rule 69 and 73(3) and (4) of the Employment and Labour Relations Court (Procedure) Rules, 2024 on the mode of securing adoption of awards by the DOSHS.
Counsel submitted that the respondent was condemned to pay the sum on account of refusing or failing to participate in the proceedings or lodge an objection within 60 days as by law required and the reasons cited on its response were untenable at this stage.
Respondent’s submissions
Counsel submitted that the first issue for determination was whether the court had jurisdiction to adopt awards made by the Director of Occupational Safety and Health Services.
Counsel cited the sentiments of the court in Okupa V Welding Alloys Ltd [2023] KEELRC 1765 (KLR), Ogola V Bob Morgan Services Ltd [2025] KEELRC 435 (KLR) and Musembi V Great Yaduo Industry Ltd [2022] KEERLC 13025 (KLR) where the court held that it had no jurisdiction, to submit that the court had no jurisdiction to adopt awards by the Director of Occupational Safety and Health Services.
Determination
It is common ground, as submitted by the applicant’s counsel that the proper approach to move the court in such a case is as prescribed by Rule 73(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024, by way of a Miscellaneous Application and only after the period allowed for appeal has lapsed which is the case in the instant case.
Equally, there is no dispute that the deceased, Mr. Charles Okwomu Mandila was an employee of the respondent and died while on duty on 8th July, 2022 as a result of brutal attack. A copy of the Certificate of Death on record is dated 23rd September, 2022.
Contrary to the respondent’s contention that the Applicants had nothing to prove that they were dependants of the deceased, and needed a letter of representation, the Applicants availed copies of letters by the Deputy County Commissioner, one Florence A. Omieno dated 2nd December, 2024 and a completed Certificate of Dependency by the same Government Officer, both certifying that Zablon Mandila Ndochi, father (73 years), Salome Chesang Mandila the administrator (71 years), Stephen Ndochi Okwiny son (23 years) and Martha Salome Atekha daughter, (27 years) were dependants of the deceased at 100%.
Instructively, the letter dated 23rd December, 2024 and the Certificate of Dependency were written in response to the County Occupational Safety and Health Office dated 17th November, 2024 and was based on the letter by the local chief dated 3rd December, 2024 confirming that the four applicants were beneficiaries of the deceased.
The Chief one Mr. Walter M. confirmed that Mr. Charles Okwomu Mandila was a resident of Imbinga village, Ikow Sub-location Ikow location, East Kabras Division Kakamega North Sub County, Kakamega County.
More significantly, and as submitted by the Applicant’s counsel, Section 20 of the Work Injury Benefits Act (herein after WIBA) provide that: -
Compensation paid under this Act for the death of an employee shall not form part of the employee’s estate.
Clearly, payment of compensation under this provision does not require a grant of letters of administration. In any event, the deceased’s father Mr. Zablon Mandila Ndochi, the 1st Applicant was appointed the Administrator of the estate of Charles Okwomu Mandila on 27th March, 2025.
The other issue for consideration, specifically raised by the respondent is whether the court has jurisdiction to grant the orders sought by the Applicants.
While the Applicant’s counsel submitted that the court was clothed with the requisite jurisdiction to adopt awards by the Director of Occupational Safety and Health Services (herein after DOSHS), the respondent’s counsel cited various authorities where the court had held that it had no jurisdiction to adopt awards by DOSHS.
It is common ground that the WIBA has no provisions for the enforcement of awards by the DOSHS nor does it vest upon this court express jurisdiction to adopt such awards. This lacuna occasioned the emergence of different schools and jurisprudence on the matter lacked consistency.
While some sections of the court postulated that the court had jurisdiction pursuant to the provisions of Article 162(2)(a) of the Constitution of Kenya, Section 12 of the Employment and Labour Relations Court Act and Section 86 of the Employment Act, sections of the Court maintained that the court’s jurisdiction under WIBA was exclusively appellate as ordained by the provisions of Section 52(2) of the Act and there are countless decisions on both schools which was patently untidy.
However, in Thepot Patrick Charles V Joash Shisia Cheto [2025] KECA 784 (KLR) delivered on 5th May, 2025, the Court of Appeal considered the question of adoption of awards by the DOSHS in detail, appreciating the challenge posited by the absence of an enforcement mechanism and upheld the decision of B.O.M. Manani J. adopting an award by the DOSHS.
The court was unequivocally held-
“As the learned Judge correctly observed, there is a lacuna in the law with regard to the procedure for enforcement of the Directors decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, the Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with jurisdiction to deal with employment and labour relations claims and for connected purposes, and as provided for under Section 86 and 89 (former Sections 87 and 90) of the Employment Act (Cap 226)…”
Guided by the Court of Appeal decision, which is binding on this court, it is now trite law that the Employment and Labour Relations Court is the only court with jurisdiction to adopt awards by the DOSHS for purposes of enforcement.
The other issue raised by the respondent is that it was unaware of the proceedings before the DOSHS and as such could neither have objected nor appealed an award it was unaware of. However, copies of letters on record would appear to suggest that there was an intention to serve the respondent or service was not acknowledged.
Both are probable as the letters dated 14th September, 2022 and 13th January, 2025 by the County Occupational Safety and Health Services office, addressed to Robinson Investments Ltd P. O. Box 2341 – 40100, Kisumu have no acknowledgement nor stamp.
However, a letter from the same office dated 7th August, 2022 urging the respondent to report the accident for further processing was received and signed by one Carolyne, on the same day, the absence of the respondent’s stamp notwithstanding.
More significantly, the court is at a loss as to why the respondent while aware of the death of its employee merely informed its insurer to handle the matter contrary to the provisions of WIBA which require an employer to notify the Director of Occupational Safety and Health Services by completing DOSH I Form and copies were provided vide letter dated 7th August, 2022.
It is evident that neither the insurer nor the respondent took any action until the instant application was filed in April 2025.
To their credit, the Applicants did not sit back and await the respondent’s action, they acted in furtherance of the deceased’s claim.
Whereas accidents during the course of employment must be reported to the employer by or on behalf of the employee, by word of mouth or writing, the DOSHS must be notified of fatal accidents within 24 hours of occurrence, other accidents within 7 days after receipt of the notice or becoming aware of it. Under Section 22(5) of the WIBA, the employee may also report an occupational accident or disease to the DOSHS at any stage as the Applicants in this case appear to have done.
The court finds it disingenuous for the respondent to contest an award by the DOSHS assessed in favour of dependants of the deceased employee, based on an attack while the employee was on duty and the employer neither reported the accident to the DOSHS as by law required nor follow up the claim with its insurer as it alleges.
Finally, even assuming that the respondents became aware of the award when the instant application was filed, more than two (2) months ago, it was incumbent upon it to take the necessary corrective action, as the DOSH’S award remains unchallenged and ready for adoption by the court as its Order and entry of judgment in favour of the applicants.
The sentiments of the Court of Appeal in Thepot Patrick Charles V Joash Shisia Cheto (supra) aptly contextualizes the foregoing, where the court, after citing the sentiments of Onesmus Makau J in Samson Chweya Mwendabole V Protective Custody Ltd [2021] KEELRC 1809 (KLR) on the lacuna in the WIBA and the inherent jurisdiction of the Employment and Labour Relations court to adopt awards by the DOSHS under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, held:-
“In this case, the learned Judge correctly observed that Section 51 and 52 of the WIBA are silent on the avenues for redress for a party who becomes aware of the proceedings before the Director after the time for lodging an objection and/or filing an appeal against the Director’s decision has already lapsed.
We agree with the learned Judge that the solution in the circumstances would be to lodge a motion for Judicial Review to quash the award before adoption by the court and on first seeking to have the adoption proceedings stayed. Notably, the appellant sat back and took no steps to that end.
The remedy identified by the learned Judge appears to be the only viable course of action in the circumstances. The appellant who took no steps to seek judicial review of the Director’s award, was misdirected in seeking to present a case for what he misperceived as breach of his constitutional right to a fair aclaim that came too late in the day. Likewise, any attempt to seek leave of the ELRC to file objection proceedings out of time, and to stay adoption proceedings pending the intended objection would also amount to a futile attempt to invoke the court’s jurisdiction, which only arises on an appeal against a Director’s written reply to an objection. In the present case, the respondent’s suit was essentially in the nature of adoption proceedings, which stood to succeed in the absence of any objection by the appellant to the Directors award.
The appellant’s disaffection with the Director’s decision on the ground that he was not the respondent’s employer, and therefore not liable; that he had not been notified of the proceedings before the Director; and that, therefore, his right to a fair hearing were violated were misplaced. Such grounds can only find relevance in an appeal contemplated in Section 52(2) of the WIBA by way of Judicial Review of the Director’s decision…”
The court is guided by the foregoing sentiments.
Flowing from it is the finding of the court foregoing reasons, the court that the Applicant’s Notice of Motion dated 1st April, 2024 has merit and is granted in the following terms:
- The award of the Director of Occupational Safety and Health Services (DOSHS) dated 14th September, 2022 of Kshs.1,440,000.00 be and is hereby adopted as a Judgment of this court and entered in favour of the applicant against the respondent.
- Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 30TH DAY OF JULY, 2025.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE