Highridge Pharmaceuticals Ltd & another v Mariga

KAT 808 U and on 3rd May 2023 he died in a road accident traffic accident while in the course of duty along Wangari Mathai Road. The accident was allegedly caused by the driver of the Respondent’s Motor vehicle KCH 197R. 2. The deceased dependants filed a claim for compensation under WIBA and the Director of Occupational Safety and Health (DOSH) assessed the award at Kshs. 2,759,904. The Claimants paid deceased fairly the said award upon deceased by the DOSH. 3. By a statement of claim dated 1 st November 2024, the Claimants sued Respondent seeking the following reliefs:a) A declaration that the Claimants are entitled to compensate recovery from the third party under Section 17 (1) (b) of the Work Injury Benefit Act as the Respondent was found 100% liable for the death of Harrison King’ola Ngutu. b) An order in favor of the 2nd Claimant to recover the compensation award of Kshs. 2,759,904/- dated 24th August 2023 issued by the County Occupational Safety and Health Office from the Respondent. c) Any other relief that the court finds fit to grant in the interest of justice. JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 2

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d) Costs of the suit. 4. The Respondent was served with the pleadings and summons but filed to enter appearance and filed a defence. As a result, when the matter came up for pre-trial directions on 10th March 2026, the Claimant prayed that the suit proceeds by documentary evidence under Rule 59 of the Employment and Labour Relations Court Procedure Rules. Thereafter they filed written submissions urging the court to enter judgment as prayed in their claim. 5. The Claimants case is grounded on the written statement of Mary Kalunde, Legal Officer of the Claimants dated 1 st March 2024 plus a bundle of 10 documents dated even date. In brief she stated that the 1st Claimant took out an Insurance Policy with the 2nd Claimant under the provisions of the WIBA being policy No. 22/02/NM/11/WIBP/0535 covering the period 7th July 2022 to 8th May 2023. 6. On 11th May 2023 the 2nd Claimant received a Work Injury Claim from the 1st Claimant informing him that his employee, Harrison King’ola Ngutu was involved in fatal accident while on official duty. Subsequently, the deceased’s dependants JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 3

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made a claim to the DOSH and on 24 th August 2023, an award of Kshs. 2,759,904 was assessed. Accordingly, the Claimants settled the award as demanded by the DOSH. 7. She averred that the Claimants were entitled to recover the compensation from the Respondent under Section 17 (1) (b) of the WIBA. 8. Having carefully considered the uncontroverted pleadings and evidence by the Claimants, there is no dispute that the Respondents Motor vehicle KCH 197R and 1 st Claimants Motor vehicle KAT 808U were involved in a road traffic accident on 3rd May 2023 and the deceased suffered fatal injuries. It is also without dispute that the deceased dependants filed a claim to the DOSH and award of Kshs. 2,759,904 was assessed and settled by the Claimants. The issues for determination are:a) Whether the Claimants are entitled to recover the compensation from the Respondent. b) Whether the reliefs sought are merited. Recovery of compensation JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 4

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9. The Claimants based their claim on Section 17 (1) (b) of WIBA. Section 17 provides that:“ (1) if an occupational accident or disease in respect of which compensation is payable, was caused in circumstances resulting in another person other than the employer concerned (in this section referred to as the ‘third party’) being liable for damages in respect of such accident or disease(b) the employer or insurer by whom compensation in respect of that accident or disease is payable may institute action in a court against the third party for the recovery of compensation that the employer or insurer, as the case may be, is obliged to pay under this Act.” 10. The police abstract produced indicate that the driver of the Respondent’s Motor vehicle was to blame for the accident. The Respondent did not dispute that evidence and therefore I will not belabor the point. I find that liability is not indispute and hold that the Respondent was 100% liable for the accident. JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 5

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11. Under Section 17 (1) (b) of WIBA I make declaration that the Claimants are entitled to recovery the compensation they paid to the deceased’s dependants under the Act. Reliefs 12. The Claimants prayed for Kshs. 2,759,904 which they paid to the deceased’s dependants. I have seen the demand by the DOSH dated 24th August 2023 for Kshs. 2,759,904, a discharge voucher dated 4th October 2023 for the said sum plus funeral expenses of Kshs. 50,000 less expenses of Kshs. 5,000, and three cheques for the total sum of Kshs. 2,759,906. The above evidence has not been disputed. Consequently, I find that the Claimants are entitled to reliefs sought in the claim and proceed to enter Judgment for them as follows:a) A declaration that the Claimants are entitled to compensation recovery from the third party under Section 17 (1) (b) of the Work Injury Benefit Act as the Respondent was found 100% liable for the death of Harrison King’ola Ngutu. JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 6

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b) An order that the 2nd Claimant to recover the compensation award of Kshs. 2,759,904/- dated 24 th August 2023 issued by the County Occupational Safety and Health Office from the Respondent. c) Costs of the suit plus interest at court rate from the date of filing till payment in full. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 30TH DAY OF JULY, 2026. ONESMUS MAKAU JUDGE Appearance: Ochieng for Claimant No appearance for Respondent JUDGMENT IN ELRC CAUSE NO. E166 OF 2024. 7

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