Mbuku v Seyani Brothers & Co

of the Act obligates the employer or his insurer to settle work injury and occupational disease claims assessed by the Director within 90 days of the assessment. 5. The Applicant avers that after the Director issued the aforesaid award against the 1st Respondent, it (the 1st Respondent) had the opportunity to apply for review of the decision or to lodge an appeal against it within the timelines that are provided in law. However, he contends that this was not done. As such, he contends that the award is now payable. And hence the request for orders to enforce payment. 6. Although the 1st Respondent was served with the application, it did not enter appearance or le a response to the motion. As such, it is deemed that it (the 1st Respondent) has not opposed the application. 7. The 2nd Respondent opposed the application. It led Grounds of Opposition to anchor its objection to the motion. 8. The 2nd Respondent contends that it is not a proper party to the action. It contends that the Work Injury Benefits Act places the obligation to compensate an injured employee on the employer and not third parties. 9. The 2nd Respondent avers that the Applicant has not, in any event, tendered evidence to demonstrate that it (the 2nd Respondent) issued the 1st Respondent insurance to cover its (the 1st Respondent’s) employees against work related injuries and occupational diseases. It contends that the Applicant has not furnished the court with a copy of the insurance policy, policy schedule or certicate to demonstrate the existence, scope, validity or applicability of the alleged insurance cover. 10. The 2nd Respondent avers that the Applicant’s claim to the Director was not lodged against it. It contends that it was not party to the proceedings in which the award was made and the award was not directed against it. 11. The 2nd Respondent contends that the Work Injury Benefits Act does not confer jurisdiction on the court to enforce awards by the Director directly against an insurer or a non-party to the award. As such, it contends that the instant action against it is misconceived and bad in law. Analysis 12. The court has scrutinized the DOSH FORM 4 which was issued by the Director to the Applicant and it is apparent that the award under consideration was issued against the 1st Respondent. There is no mention of the 2nd Respondent in the said form. 13. Whilst it is true that section 7 (1) of the Work Injury Benefits Act requires employers to insure their employees against work related injuries and occupational diseases, there is nothing in the legislation which implies that this requirement was intended to convert the insurers into principal parties in proceedings for enforcement of the awards under the Act. On the contrary and by virtue of section 10 (2) of the Act, the obligation to settle the awards is placed on the employer. 14. The Applicant appears to rely on section 26 (4) of the Act to contend that the 2nd Respondent should be ordered to settle the award. However, it is apparent from that provision that an insurer of an employer will only be obligated to settle a claim if it (the claim) was made against it (the insurer). 15. In the instant case, the award by the Director was not directed at the 2nd Respondent. As such, the court cannot enter judgment for the amount in the award against it (the 2nd Respondent). 16. In the court’s view, if the Applicant wishes to obtain judgment against the 2nd Respondent in its capacity as the 1st Respondent’s insurer, he should move the court through a separate declaratory https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2176/eng@2026-07-27 2

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action. He cannot do so through this enforcement action (see Kiogora v Imetha Water & Sanitation Co. Ltd & another [2023] KEELRC 538 (KLR)). 17. Having regard to the foresaid, it is apparent that the attempt by the Applicant to enforce the award under consideration against the 2nd Respondent through the instant proceedings is misconceived. As such the request is declined. 18. As regards the 1st Respondent, it is apparent from the evidence on record that the Director issued the award under consideration against it (the 1st Respondent). Subsequently, the Director notied it (the 1st Respondent) of the award on 20th June 2025 vide DOSH FORM 4. 19. There is no indication that the 1st Respondent challenged the award either by way of review or appeal as contemplated under sections 51 and 52 of the Work Injury Benefits Act. As such, it (the 1st Respondent) was duty bound to settle the award within 90 days from 20th June 2025in terms of section 26 of the Act. 20. There is no evidence that this was done. As such, the Applicant is entitled to seek the orders in the application against the 1st Respondent in order to enforce the award as a decree of the court. Determination 21. After evaluating the application dated 23rd January 2026 against the applicable law, the court issues the following orders:a. The court enters judgment for the Applicant against the 1st Respondent for the sum of Ksh. 1,317,000.00 in terms of the award by the Director of Occupational Safety and Health Services dated 20th June 2025. b. The action against the 2nd Respondent is dismissed. c. Each party to bear own costs of the application. DATED, SIGNED AND DELIVERED ON THE 27TH DAY OF JULY, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Applicant …………….for the Respondents order In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court 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. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2176/eng@2026-07-27 3

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