REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURTAT NAIROBI ELRC MISCELLANEOUS APPLICATION NO. E280 OF 2025 RUTH MORAA NYAIGOTI...................................................1ST APPLICANT BRIAN MOKUA OKIOGA………………...……………….2ND APPLICANT VERSUS SAMUEL NYACHIO GUTO…………….……………….1ST RESPONDENT JOHN ABUGA GUTO…………………………………....2ND RESPONDENT MAGNEEL INVESTMENTS LIMITED……..…………3RD RESPONDENT RULING Background 1. The Applicants filed the application dated 4 th August 2025 against Divine Assinter Limited, the initial Respondent seeking judgment against the aforesaid Respondent for, inter alia, the sum of Ksh. 3,563,808.00 in terms of the award by the Director of Occupational Safety and Health Services (the Director) dated 15 th March 2024. They contended that the award was made by the Director for the benefit of the estate of one Reuben Mokua Obegi (deceased) who died following a fatal accident whilst on duty. It was their case that, at the time of the deceased’s demise, he was ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 1
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a driver of a motor vehicle which belonged to the said Divine Assinter Limited. 2. The Applicants filed the application in their capacity as the legal representatives of the estate of the deceased. They averred that they had obtained letters of administration to enable the process. 3. When the application was served on the then Respondent, it raised an objection to the action on the ground that it had been improperly sued. It contended that the Director’s award was made against one Simion Guto and not itself. It averred that it was not the deceased’s employer. 4. Faced with this objection, the Applicants’ lawyer withdrew the application against Divine Assinter Limited. He then amended the application under consideration to bring on board the current Respondents. The amended application is dated 10th September 2025. 5. Counsel for the Applicants contended that his clients initially filed the application against Divine Assinter Limited after an official search from the Registrar of Motor Vehicles showed that the motor vehicle which was involved in the fatal accident belonged to the aforesaid entity. However, he contended that after the application was served on Divine Assinter Limited, it turned out that it (Divine Assinter Limited) had sold the vehicle to Magneel Investments Limited, the 3rd Respondent, before it (the motor vehicle) ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 2
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was involved in the suit accident. And hence the decision to withdraw the application against Divine Assinter Limited. 6. During the court session of 1 st October 2025, the court observed that DOSH/WIBA 4 form on record showed that the award by the Director was rendered against one Simion Guto. Therefore, it (the award) could only be enforced against the said Simion Guto. In the premises, the court observed that it was improper for the Applicants to have dragged Divine Assinter Limited into the matter. 7. The current 1st and 2nd Respondents have raised a similar challenge to the validity of the claim against them. They contend that: the award by the Director was not made against any one of them; and they were not the employers of the deceased. 8. The Respondents contend that an award under the Work Injury Benefits Act can only be enforced against the employer of the employee who has lodged a claim and not anyone else. As such, they posit that the claim against them is misconceived. Analysis 9. The position in law is that a court of law can only enforce an award as rendered. It cannot alter it (the award) at the stage of enforcement. Subject to the requirements of legality of the award, the court’s duty at that stage is to implement the award ‘’as is’’ without more. ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 3
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10. Similarly, the court can only enforce an award against those who are named in it. It (the court) cannot enforce the award against third parties. 11. Speaking to this in the context of arbitration awards, the Court of Appeal of Singapore in the case of National Oilwell Varco Norway AS v Keppel FELS Ltd [2022] SGCA 24, quoting an extract from Robert Merkin, Arbitration Law (Informa UK, March 2021 release) on the subject, stated as follows:‘’ … the award cannot be enforced on terms not specified in the award. … In particular, an award can only be enforced against a losing party in the arbitration. The party successful in the arbitration is not, therefore, entitled to seek enforcement of the award against another person who is alleged in the enforcement proceedings to be the principal of the losing party in the arbitration.’’ 12. The aforesaid underscores the reality that a court of law can only enter judgment that strictly mirrors the terms of the award. It cannot alter the scope of the award to encompass non-parties at the enforcement stage. 13. The only exception to this, as was observed in the aforesaid case, is where there is a misnomer in the award such as where: a party to the award has been wrongly described; or a party to the award has undergone transition, for instance, as a result of a merger. ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 4
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14. In Kiramba (Suing for and on Behalf of the Estate of Joseph Kiramba Ndungu) v Kinsfolk Limited & another [2026] KEELRC 753 (KLR), the Applicant purported to pursue enforcement of an award by the Director against both the Respondents in the suit even as it was apparent that the 2nd Respondent had not been party to the proceedings before the Director. The court struck out the claim against the 2nd Respondent on account of misjoinder. A similar finding was made in the case of Mutunga & another (Suing for and on Behalf of James Mutuku Nduva) v Kinsfolk Limited & another [2026] KEELRC 731 (KLR). 15. In the instant proceedings, it is apparent that the award by the Director was made against one Simion Guto. There is no indication that the award was directed at the three Respondents. Consequently and having regard to the decisions referred to above, it is doubtful that the court is entitled to enter judgment against them (the Respondents). 16. Importantly and as was stated by the Court of Appeal in the case of Charles v Cheto [2025] KECA 784 (KLR), the role of the court in proceedings for adoption of the Director’s award is limited to adopting the award as rendered by the Director. The court is not entitled to open an inquiry into other matters such as whether other parties, who were not party to the award by the Director, should be held liable for the award. ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 5
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17. The instant action brings to the fore the reality that the Director was given incorrect information regarding who the actual employer of the deceased was. And hence his decision to make an award against one Simion Guto. 18. This error cannot be corrected by attempting to introduce additional parties who are not mentioned in the award at the enforcement stage. The only way to correct the anomaly is to go back to the Director with a fresh claim against the proper employer. Determination 19. The foresaid being the case, the court declines to grant the orders sought in the application dated 10th September 2025. 20. Each party to bear own costs of the application. Dated, signed and delivered on the 25th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 6
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proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC MISCELLANEOUS APPLICATION NO. E 280 OF 2025 7
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