Aden Ahmed Abdilie (Suing for and on behalf of Adow Hassan Abdille - Deceased) v Ainushamsi Hauliers Ltd & another

b) Reasonable burial expenses for the sum of Kshs. 356,600/- incurred in laying the Deceased to rest; and c) Interests thereon at court rates (14%) from the date of the award (15th June, 2015) until payment in full. 3. Each party to bear its own costs. Applicant’s Case 2 The Applicant avers that Adow Hassan Abdille was employed by the 1st Respondent as a driver; and that on 22nd March 2015, he sustained work-related injuries in the course of his employment which led to his untimely death. 3 The Applicant avers that the incident was duly reported to the Directorate Services, of Nairobi, assessment he Occupational vide was DOSH found to Safety and Health Form 1, and upon have suffered 100% permanent incapacity. 4 He states that consequently, on 15 th June 2015, the Director issued DOSH/WIBA 4, assessing the sum of Kshs. 2,436,576 payable by the Respondents. 5 The Applicant contends that beyond the assessed compensation, the Respondents, as employer and insurer, are by dint of Section 34(4) of the Work Injuries Benefits Act liable to meet reasonable funeral expenses occasioned Page 2 of 12

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by the death of the employee, which sum he now claims in the amount of Kshs. 356,600. 6 It is his case that upon the Director's assessment, the Respondents were obligated under the Act to effect payment within 90 days, failing which the Director would remit the sum to the Claimant within a further 30 days, and that where aggrieved, the Respondents had 60 days to lodge an objection with the Director or, in any event, to appeal to this Court. 7 The Applicant asserts that despite these timelines, the Respondents were notified of the assessment on 15 th June 2015 and have, to date, neither lodged an objection nor filed an appeal. 8 He avers that Section 7(1) of the Act obligates every employer to maintain an insurance policy with an insurer approved by the Cabinet Secretary against liability arising under the Act, and that Section 26 obligates an employer or insurer against whom a claim is lodged by the Director to settle the same within ninety (90) days of lodgment. 9 It is the Applicant's position that the Respondents' failure to comply with these provisions amounts to an illegality warranting the sanction of this Court, and that the continued non-payment of the award infringes his right to equal benefit and protection of the law under Article 27, Page 3 of 12

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and to fair labour practices under Article 41, of the Constitution. 10 He further contends that so long as the award remains unpaid, time continues to run against him, exposing him to the risk of being time-barred from recovering the same. 11 In response to the Respondents' Replying Affidavit dated 21st April 2026, the Applicant vide his Supplementary Affidavit dated 23rd April 2026, states that Rule 69(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 empowers this Court to enforce a Director's award, and that this Court and the Superior Courts have repeatedly held that this Court is properly clothed with jurisdiction to do so, rendering the issue moot. 12 On the question of the deceased's employment status, he avers that this is correctly captured in DOSH Form 1 already on the court record as confirming that the deceased was at all material times an employee of the 1 st Respondent, and contends that, in any event, this is a factual issue properly ripe for consideration before the Director by way of objection. 13 The Applicant further avers that the Respondents admit that a claim was indeed due to the deceased’s Estate and that payment was delayed for lack of a grant ad litem. 14 He contends that having now obtained the grant, the Respondents are obligated to settle the claim, and that Page 4 of 12

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any delay occasioned was neither inordinate nor prejudicial to them, the 2 nd Respondent bearing an obligation to settle claims promptly. 15 He asserts that the allegation of unjust enrichment raised by the Respondents is misconceived and without legal basis, the award remaining unpaid despite having been validly issued and being enforceable, and that the award of interest thereon lies within the discretion of this Court. Respondents’ Case 16 In opposition to the application, the Respondents’ filed a replying affidavit dated 21st April 2026, sworn by Betty Isoe, the 2nd Respondent’s Legal Manager. 17 It is the Respondents' case that this Court lacks jurisdiction to enforce the award of the Director of Occupational Safety and Health Services, and that the Court's competence to interact with such an award is confined to an appeal lodged against it under Section 52(2) of the Work Injuries Benefits Act. 18 The Respondents contend that the Applicant has failed to demonstrate and prove that the deceased was an employee of the 1st Respondent. 19 They further aver that the Applicant is not entitled to the award and interest sought, in that there was a deliberate Page 5 of 12

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delay on his part in presenting the Grant ad Litem necessary to enable processing of the award, and that the failure to settle the same was occasioned by the Applicant's own failure to tender the Limited Grant of Letters of Administration ad Litem to prove his relationship with the alleged employee. 20 It is their position that the Court should decline the prayer for interest, the same being liable to amount to unjust enrichment, and that the claim is premised on a misplaced and mischievous allegation. 21 On this basis, the Respondents contend that the Application is devoid of merit and pray that it be struck out in its entirety, with costs to the Respondents. Applicant’s Submissions 22 On jurisdiction, the Applicant submitted that the jurisdiction of this Court to entertain the Application is now settled. Counsel argued that the application, being one for enforcement of a statutory award issued under the Work Injury Benefits Act, properly invokes the jurisdiction of this Court under Article 162(2) of the Constitution, Section 12 of the Employment and Labour Relations Court Act, Sections 10, 19, 26 and 51 of WIBA, and Rule 69 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Page 6 of 12

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23 Reliance was placed on Juma v Red Mamba Agencies Limited & another [2025] KEELRC 3568 (KLR), where the court held that although WIBA does not expressly provide an enforcement mechanism, Rule 69 of the ELRC (Procedure) Rules cures that gap by empowering the Court to adopt the Director's award as a judgment of the Court. On this basis, it was submitted that the Court is properly clothed with jurisdiction to determine the application. 24 On the question of employment, the Applicant submitted that the Respondents' attempt to dispute the existence of an employment relationship is insincere and legally impermissible. It was argued that the DOSH Form 1 on record confirms that the deceased was, at all material times, an employee of the 1 st Respondent, and that WIBA provides a clear statutory dispute resolution mechanism by way of objection and appeal, which the Respondents failed to invoke within the prescribed timelines. 25 It is the Applicant’s submission that it is now too late for the 1st Respondent to reopen factual issues that ought to have been canvassed before the Director, and that this Court, sitting as an enforcement court, cannot be invited to sit on appeal against a decision that was never challenged. 26 On the reliefs sought, the Applicant submitted that the Respondents, at paragraphs 5 and 6 of the Replying Affidavit, effectively concede the existence of the claim Page 7 of 12

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and attribute the delay in payment solely to the absence of a Grant ad Litem, which has since been obtained and furnished, leaving no legal or factual impediment to settlement. It was contended that the continued refusal to pay is accordingly unjustified, unlawful, and amounts to bad faith. 27 On the claim for burial expenses, the Applicant relied on Section 34(4) of WIBA, which places on the employer the obligation to meet reasonable funeral expenses where an injury results in death, and cited the decision in Ndaya & another (Suing for and on Behalf of the Estate of Musa Kulecho Nyundo – Deceased) v Handyman Staffing Solutions & another [2026] KEELRC 13 (KLR), for the proposition that:"It is a fundamental principle and presumption of the law that there is no legal wrong without a remedy – Ubi jus ibi remedium... the court cannot and should not sit back and fail to remedy and compensate the applicants albeit only for fair, just, reasonable, and lawful expenses incurred in the burial of the deceased." 28 Relying on this authority, he submitted that he has demonstrated burial expenses of Kshs. 356,600, which the Respondents have neither controverted nor reimbursed. 29 On interest, it was submitted that interest serves to compensate a successful litigant for being kept out of money rightfully due, that the right to compensation Page 8 of 12

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under WIBA crystallizes upon assessment and issuance of the Director's award, and that the Respondents' contention that an award of interest would amount to unjust enrichment is misconceived, the grant of interest being a matter within the discretion of the Court, to be exercised judiciously on sound legal principles. Respondents’ Submissions 30 On the question of jurisdiction, it was submitted that the sanctity of a court having jurisdiction over the subject matter before it, prior to hearing and determining a dispute, is settled by the holding in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR. Counsel argued that WIBA contains no provision bestowing upon this Court jurisdiction to enforce compensatory awards made by the Director, and that the Court's mandate under the Act is confined to appeals against DOSH decisions. 31 The Respondents submitted that the instant application, seeking enforcement of the Director's award, ought not to be allowed. They argued that the Court declined to assume jurisdiction over an application for enforcement of a DOSH award, holding that the Court's jurisdiction flows from legislation or the Constitution, or both, and that WIBA confers only appellate jurisdiction in respect of matters relating to DOSH awards; the Court further observed that Page 9 of 12

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to allow such an application would amount to an impermissible expansion of the Court's jurisdiction. 32 It is the Respondents submission that the Applicant has not cited any provision of WIBA upon which this Court may assume jurisdiction, and the Respondents accordingly prayed that the Application be dismissed with costs. 33 On the question of interest, the Respondents submitted that the Applicant is not entitled to interest, if any, having taken some ten years to obtain the Grant ad Litem, the Director's award being dated 15th June 2015 as against the Grant ad Litem dated 28th November 2025. It was argued that this delay has not been explained to the Court, and that the Applicant ought not to be permitted to benefit from his own delay. 34 On this basis, it was submitted that the Court cannot assume jurisdiction where none has been conferred by legislation or the Constitution, and the Respondents urged that the application be dismissed. 35 I have considered all the averments and submissions of the parties herein. The applicant seeks adoption of the award of the Director Dosh of 25/6/2015 of kshs 2,436,576 following the death of the applicant. Page 10 of 12

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36 The respondents have opposed the application contending that this court lacks jurisdiction to handle it and they argue that the application should be dismissed. 37 Concerning jurisdiction, it is now settled that the ELRC is the court to adopt the award of the Director as held by the Court of Appeal in Charles vs Cheto (C.A No. 046 of 2022) (2025) KECA 784 (KLR). The Court of appeal held that the ELRC is the court with the jurisdiction to adopt the Directors award which aligns with the courts mandate under article 162(2)(a) of the Constitution. 38 The Court of Appeal further held that the court’s mandate is strictly enforcement and not to delve into merits or demerits of the award. 39 The objection on the courts jurisdiction is found without merit and is disregarded. 40 The applicant has further explained that the delay in filing for enforcement was premised on his quest to get letters of administration before filing. This having been done, I find that there is nothing that stands in the way of adoption of the award which I find merited and I allow it and adopt the award of the Director Dosh at Kshs 2,436,516 as a judgment of this court. The award will attract interest plus costs with effect from the date of this ruling. Page 11 of 12

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Dated, Signed and Delivered virtually at Nairobi this 29th Day of September 2026. HELLEN WASILWA JUDGE Page 12 of 12

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