REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI MISC. NO. E209 OF 2026 (Before Hon. Lady Justice Agnes Kitiku Nzei) RONALD WAFULA BARASA ............................APPLICANT VERSUS THE DIRECTORATE OF OCCUPATIONAL SAFETY AND HEALTH – KIAMBU COUNTY.....RESPONDENT AND DRAFT DEFU KENYA INVESTMENT & DEVELOPMENT LIMITED ...................INTERESTED PARTY RULING 1. Before me for determination is the Applicant’s Chamber Summons application dated 28th April, 2026. The Applicant seeks the following Orders:(a) That the Respondent be ordered to issue the relevant ML/DOSH/FORM 4, being the assessment of the compensatory award payable to the Applicant pursuant RULING Nairobi ELRC Misc. Application No. E209 of 2026 1 of 9
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to work place injury sustained on 19th July, 2025, within 7 days of the order. (b) That failure to comply, the Applicant be granted leave to file suit against the Interested Party before the Magistrate’s Employment and Labour Relations Court – Limuru, for assessment of a compensatory award payable to the Applicant for a workplace injury sustained on 19th July, 2025, within thirty (30) days of the order. (c) That the draft statement of claim annexed hereto be deemed as duly filed and served upon payment of the DRAFT requisite filing fees. (d) That costs of the application be provided for. (e) Any other directions as may be necessary for proper carrying into effect of any order issued. 2. The application is based on the Applicant’s affidavit sworn on 28th April, 2026 in support of the application. It is deponed in the said supporting affidavit:(a) that at all times material to the application herein, the Applicant was employed by the Interested RULING Nairobi ELRC Misc. Application No. E209 of 2026 2 of 9
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Party, earning a monthly salary of Kshs.20,000/=. (b) that on or about 19th July, 2025, the Applicant was involved in a workplace accident, as consequence of which he suffered a physical injury. (c) that the injury was reported to the employer and to the Directorate of Occupational Safety and Health Services (DOSHS), by the Respondent herein, via DOSH FORM 1; and that the Applicant underwent medical examination and submitted all DRAFT requisite documentation for assessment. That the Respondent and its authorised employees, agents and servants have deliberately refused and/or neglected to issue DOSH FORM 4, which is necessary for compensation under the Work Injury Benefits Act. (d) that the refusal violates the Applicant’s right to fair administrative action and access to justice. 3. The application was first placed before me under a Certificate of Urgency on 28th April, 2026, and I directed RULING Nairobi ELRC Misc. Application No. E209 of 2026 3 of 9
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that the same be physically served; and that responses to the application be filed. No response to the application has been filed. The application is, therefore, unopposed. 4. Documents annexed to the supporting affidavits are copies of some clinical notes and a demand letter. 5. The single issue falling for determination, in my view, is whether the orders sought by the Applicant are capable of being granted. DRAFT 6. Section 16 of the Work Injury Benefits Act (WIBA) provides as follows:“No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no lability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.” RULING Nairobi ELRC Misc. Application No. E209 of 2026 4 of 9
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7. Section 21 of the WIBA provides as follows:“Written or verbal notice of any accident provided for under Section 22 which occurs during employment shall be given by or on behalf of the employee concerned to the employer and a copy of the written notice or a notice of the verbal notice shall be sent to the Director within twenty-four hours of its occurrence in the case of a fatal accident”. DRAFT 8. Under Section 22(1) of the WIBA, an employer shall within 7 days of learning of or receiving notice of an injury to an employee report the matter to the Director in the prescribed manner. 9. Section 23(1) of the said Act (WIBA) 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 RULING Nairobi ELRC Misc. Application No. E209 of 2026 5 of 9
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to decide upon any claim or liability in accordance with this Act”. 10. Sections 28, 29 and 30 of WIBA provide for assessment of compensation payable to employees who suffer occupational injuries or diseases. 11. It is evident from the foregoing statutory provisions that determination of the issues of liability and assessment of compensation payable to employees who suffer occupational injuries or diseases falls within the DRAFT province of the Director of Occupational Safety and Health Services (the Director). 12. Any person who is aggrieved by the Director’s decision can object to such impugned decision in the manner provided for in Sections 51 and 52 of the Act (WIBA). 13. What comes out from the uncontroverted depositions made in the Applicant’s supporting affidavit is that the Director is yet to make his decision on the issues of liability and assessment of compensation pursuant to Sections 16, RULING Nairobi ELRC Misc. Application No. E209 of 2026 6 of 9
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23(1), 28, 29 and 30 of the WIBA; despite having received appropriate notice from the Applicant’s employer. The Director (the Respondent) has not responded to the application, and has therefore not given any reason for failing to assess compensation that may be payable to the Applicant. 14. In view of all the foregoing, I disallow prayers (b), (c) and (d) in the application as set out in paragraph 1 of this Ruling; and hereby allow prayers (a) and (e) in the following terms:DRAFT (a) The Respondent herein, that is, the Directorate/Director of Occupational Safety and Health Services – Kiambu County, shall within thirty days of this Ruling complete the process of assessing any compensation that may be payable to the Applicant, and shall comply with the relevant law regarding demand for payment of any assessed compensation. 15. The Applicant shall serve a certified copy of this Ruling on the Respondent forthwith for compliance. RULING Nairobi ELRC Misc. Application No. E209 of 2026 7 of 9
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16. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online DRAFT Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: No appearance for the Applicant No appearance for the Respondent No appearance for the Interested Party RULING Nairobi ELRC Misc. Application No. E209 of 2026 8 of 9
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DRAFT RULING Nairobi ELRC Misc. Application No. E209 of 2026 9 of 9
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