Joseph Abukuse Odera v Kenya Power and Lighting Company Limited

Health for the sum of Kshs.474,377.82, with interest at 14% per annum from 1st September, 2025. (c) That costs of the application be paid by the Respondent. 2. The application sets out on its face the grounds on which it is predicated. The said grounds are substantially replicated in the Applicant's affidavit sworn on 20 th May, 2026 in support of the application. DRAFT 3. Documents annexed to the said supporting affidavit include copies of:(a) Notice by Employer of an Occupational accident, duly filled by the Employer (the Respondent) and sent to the Directorate of Occupational Safety and Health Services (ML/DOSH FORM 1). (b) The Applicant’s National Identity Card, and (c) Form ML/DOSH/WIBA/FORM 4, duly filled and signed by the Director of Occupational Safety and Health Services and/or on his behalf by an authorised officer on 1st September, 2025. RULING Nairobi ELRC Misc. Application No. E252 of 2026 2 of 10

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(d) A demand letter by the Applicant’s Advocates, dated 15th May, 2026. 4. The Respondent did not file any response to the application, though shown to have been served with both the application and a hearing notice thereon. The application is, therefore, unopposed. 5. It is clearly stated in the aforementioned Notice by Employer of an Occupational Accident, duly filled and signed by the employer (the Respondent herein), and sent to the DRAFT Directorate of Occupational Safety and Health Services (the Director):(a) that the Applicant was the Respondent’s employee at the material time, and was undertaking duties which included Meter Inspection and Replacement. (b) that the Applicant was involved in a motorbike accident on 21st May, 2024 at 12.00 hours, as a result of which he sustained injuries, was treated and resumed duty on 20th June, 2024. RULING Nairobi ELRC Misc. Application No. E252 of 2026 3 of 10

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6. It is deponed in the Applicant’s supporting affidavit, inter alia:(a) that he was treated at different hospitals and that DOSH/WIBA/FORM 4 was duly filled by the Director, to whom the accident had been reported. (b) that the Applicant’s permanent incapacity was assessed by the Director at 8%, with the compensation payable to him being assessed at Kshs.474,377.82. (c) that the Respondent did not pay the said assessed DRAFT sum, despite demand for payment by the Director (vide the DOSH/WIBA/FORM 4 sent to it by the Director). (d) That the statutory ninety days’ notice provided for under Section 26(4) of the Work Injury Benefits Act (WIBA) lapsed. 7. As I have previously stated in numerous decisions of this Court, it ought to be noted that under the WIBA, determination of the issue of liability and assessment of compensation payable to employees who sustain RULING Nairobi ELRC Misc. Application No. E252 of 2026 4 of 10

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work related injuries falls within the province of the Director. Section 23(1) of the said Act provides as follows:“(1) After having received notice of an accident or having learned that an employee has been injured in an accident, the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with this Act.” 8. Once the Director makes his decision on the aforesaid twin DRAFT issues of liability and assessment of damages/compensation payable to an injured employee and/or to the estate of a diseased employee where death results from work injuries, any person and/or entity aggrieved by such decision can only challenge the same pursuant to Sections 51 and 52 of the WIBA. 9. The Respondent/employer, against whom the Director is shown to have made an award of a total of Kshs.474,377.82 on 1st September, 2025, is not shown to have objected to that decision pursuant to Section 51 of RULING Nairobi ELRC Misc. Application No. E252 of 2026 5 of 10

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WIBA, or to have appealed against any decision arising from such objection pursuant to Section 52 of the said Act. 10. That being the case, this Court’s duty herein is limited to enforcing the Director’s said award/decision, which has long vested. 11. I stated as follows in this Court’s decision in the case of Amir Swaleh Omar – vs – Mackezie Maritime (E.A) Limited (Cause E030 of 2021) [2022] KEELRC 4109 (KLR) (29 th September, 2022):DRAFT “17. 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 enforced. occupational deceases are to be 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 RULING Nairobi ELRC Misc. Application No. E252 of 2026 6 of 10

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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. 18. What would be the purpose of the Director making or undertaking enquiries in order to determine the issue of liability and proceeding to assess the compensation payable if the compensation assessed by the Director was not meant to be paid to the injured employee? In my view, once the Director assesses the compensation payable and the same is not objected to pursuant to Section 51 DRAFT of WIBA, the assessed sum becomes the injured employee’s right and entitlement regarding which the employee can move to Court and seek enforcement of that right by seeking entry of Judgment in terms of the Director’s assessment, and issuance of a decree which can then be executed to realise that right. 19. Indeed, failure by an employer to pay a demanded compensation that has been assessed by the Director and to which no objection has been lodged creates a dispute over a liquidated claim, RULING Nairobi ELRC Misc. Application No. E252 of 2026 7 of 10

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which this court can entertain and determine. Article 50(1) of the Constitution of Kenya 2010 provides:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body.” 12. Having stated that, I hereby allow the Applicant’s Notice of DRAFT Motion dated 20 th May, 2026 in the following terms:- (a) The Director’s award of compensation in the sum of Kshs.474,377.82 made in favour of the Applicant and dated 1st September, 2025 is hereby adopted by this Court and, accordingly, Judgment is hereby entered for the Applicant against the Respondent herein in the said sum of Kshs.474,377.82, being the sum awarded by the Director. RULING Nairobi ELRC Misc. Application No. E252 of 2026 8 of 10

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(b) The said awarded sum shall attract interest at Court rates from the date of filing of the suit herein until payment in full. (c) Costs of the proceedings herein shall be paid to the Applicant by the Respondent, to be agreed or taxed. (d) A decree shall issue in accordance with the Civil Procedure Rules, pursuant to Section 13 of the Employment and Labour Relations Court Act. DRAFT 13. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE ORDER RULING Nairobi ELRC Misc. Application No. E252 of 2026 9 of 10

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This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Masua for the Applicant No appearance for the Respondent DRAFT RULING Nairobi ELRC Misc. Application No. E252 of 2026 10 of 10

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