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ELRCPartially AllowedELRC Claim, Mombasa (number not stated in judgment)· [2025] KEELRC 1947 (KLR)

Akinyi & another (As the Administrators of the Estate of Joel Odhiambo - Deceased) v Quale Holdings Limited t/a Guyana Guest House (Cause E068 of 2021) [2025] KEELRC 1947 (KLR)

Employment and Labour Relations Court
30 June 2025
2,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimants, legal representatives of the deceased Joel Odhiambo, sued the respondent for Ksh. 1,926,144 as assessed by DOSH under the Work Injury Benefits Act, plus interest at 16% and costs. The deceased, engaged to paint and plaster the respondent's Guyana Guest House, died on 8 September 2018 after the rooftop canopy he stood on cracked and he fell. DOSH assessed compensation on 8 February 2019 and demanded payment on 11 October 2019, which the respondent refused. The respondent denied any employment relationship, contending the deceased was an independent contractor; it also argued the DOSH assessment was irregular, that it was denied participation and natural justice, and that the pending Mombasa SRMCC No. 2078 of 2019 over the same cause of action rendered this claim res judicata and an abuse of process, urging indemnity by its insurers, Metropolitan Canon General Insurance and Jubilee Insurance. The court framed four issues: employment relationship, propriety given the pending suit, the orders sought, and costs. It held that WIBA's definition of 'employee' under section 5 is broader than the Employment Act's and covers persons on contract for service; once on the shop floor, the deceased was protected by WIBA. Insurance cover could not be used to negate WIBA. The pending magistrates' suit did not bar the claim, the magistrate's court having referred the matter to DOSH after the LSK Supreme Court decision, and the court's jurisdiction had already been affirmed in its 27 October 2022 ruling. The claim was allowed with judgment for Ksh. 1,926,144, payable within 30 days with interest at court rates thereafter, and costs to the claimants.

Key legal issues

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01

Whether an employment relationship existed under WIBA

Holding

Yes - WIBA's broad definition of employee covers the deceased despite the respondent's contract-for-service defence

Reasoning

The court held WIBA protects everyone on the shop floor and applies a broader definition of 'employee' than the Employment Act. The respondent admitted a contract for service existed, placing the deceased on the shop floor where the accident occurred on 8 September 2018. The insurance policy's failure to define 'employee' and its schedule covering a maintenance person reinforced coverage.

p. 5
02

Whether the pending Mombasa SRMCC No. 2078 of 2019 bars this claim (res judicata / section 6 Civil Procedure Act)

Holding

No bar; the claim is proper

Reasoning

The respondent argued the pending magistrates' suit over the same cause of action made this claim an abuse of process under section 6 of the Civil Procedure Act. The court noted the magistrate's court had declined jurisdiction following the LSK Supreme Court judgment and referred the matter back to DOSH, so the claim before the ELRC was proper. The court's jurisdictional objection had already been dismissed on 27 October 2022 and was not appealed or reviewed.

p. 4
03

Whether the DOSH assessment of Ksh. 1,926,144 is valid and payable

Holding

Yes, the assessment and compensation are due

Reasoning

DOSH assessed the claim on 8 February 2019 and issued a demand notice served on the respondent, which neither objected nor appealed, and has not paid. The respondent's challenge to service and participation in the assessment was rejected; the respondent's own petition on the assessment had been resolved without joining DOSH in these proceedings. The court found proper service and notice confirmed.

p. 4

Legal principles established

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  • WIBA's definition of 'employee' under section 5 is broader than under the Employment Act and covers workers engaged on contract for service, whether oral or written, paid by time or by work done
  • A worker injured on the employer's premises while on the shop floor is protected under WIBA irrespective of the contract-for-service/employee distinction
  • An insurance policy cannot be used to negate WIBA coverage

Court orders

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  1. 1.The DOSH assessment and compensation at Ksh. 1,926,144 be paid to the claimants
  2. 2.Payment within 30 days, after which the sum shall accrue interest at court rates
  3. 3.The claimants are awarded costs
Jurisdiction invoked
Work Injury Benefits Act (WIBA) and Article 162(2) of the Constitution (ELRC jurisdiction); court's jurisdictional objection previously dismissed in its ruling of 27 October 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Akinyi & another (As the Administrators of the Estate of Joel Odhiambo - Deceased) v Quale Holdings Limited t/a Guyana Guest House (Cause E068 of 2021) [2025] KEELRC 1947 (KLR)", Case Analysis (2025). ELRC Claim, Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1947/eng@2025-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.