Janet Awuor Suro & Naomi Adhiambo (Suing as the Personal Representatives of the Estate of Kennedy Juma Ongaro (Deceased)) v Vigilmax Security Company Limited

Occupational Health and Safety made on 15th March 2023; (3) THAT judgment be entered for the sum of Kenya shillings Five Hundred and Forty-Nine Thousand and Thirty-Two Shillings only (Kshs. 549,032/-) against the Respondent with interest at 14% from the date of assessment by the Director of Occupational Health and Safety; and (4) THAT costs of the Application be borne by the Respondent. 2. The grounds in support of the application are that the deceased, who was the Applicants’ husband, was assaulted on 10th January 2023 while on duty and subsequently succumbed to his injuries. Following his death, DOSH assessed compensation of Kshs 1,056,000/- as payable to his beneficiaries. However, the Respondent remitted only Kshs 506,968/- and declined to pay the balance of Kshs 549,032/despite numerous demands. The Applicants therefore contend that the Court’s intervention is necessary to compel payment of the outstanding amount. Page 2 of 7

page 2 of 7

3. In opposition to the Motion, the Respondent filed a Replying Affidavit sworn by its director on 12th June 2026. The Respondent explains that, on 1st March 2023, it had instructed its insurer, AAR Insurance Company, to increase the insurance limit from Kshs. 2,500,000/-, covering five guards, to Kshs. 5,000,000/-, covering ten guards. It contends, however, that the insurer failed to implement the instruction and subsequently processed the deceased’s claim under the previous policy, resulting in the reduced payout of Kshs. 506,968/-. The Respondent therefore maintains that any shortfall between the DOSH assessment and the amount paid by the insurer ought to be borne by the insurer, whose failure to implement the Respondent’s instructions allegedly caused the shortfall. It consequently urges the Court not to require it to personally satisfy an obligation falling within the scope of its insurance indemnity cover. 4. The motion was canvassed by way of written submissions. Applicants’ Submissions 5. The Applicants submit that this Court has jurisdiction to adopt and enforce an award made by the Director of Page 3 of 7

page 3 of 7

Occupational Safety and Health (DOSH). They rely on Osino v China Civil Engineering Construction Corporation (K) Ltd [2025] KEELRC 1792 (KLR), where the Court held that the Employment and Labour Relations Court has the requisite jurisdiction to enforce DOSH awards. They further submit that the application is properly brought under Rules 69 and 73(3) and (4) of the Employment and Labour Relations Court Procedure Rules, 2024, which permit the Court to adopt and enforce administrative decisions after expiry of the applicable period for appeal or review. 6. As concerns the shortfall of Kshs. 549,032/-. The Applicants contend that the dispute between the Respondent and its insurer is irrelevant to the present application, as the deceased was an employee of the Respondent. They assert that any remedy arising from the insurer’s alleged failure lies between the Respondent and its insurer. They further submit that partial payment does not extinguish the outstanding liability and that, having failed to challenge the DOSH award through the procedure provided under the Work Injury Benefits Act, the Respondent has disclosed no legal basis Page 4 of 7

page 4 of 7

upon which its adoption should be declined. They therefore urge the Court to adopt the award as its judgment and order payment of the outstanding sum, together with costs and interest from 15th March 2023 until payment in full. Respondent’s Submissions 7. The Respondent identifies the following issues for determination: (1) Whether the Court should adopt the DOSH award without taking into account the substantial payment already made; (2) to Whether the Respondent should be condemned satisfy the alleged outstanding balance notwithstanding the undisputed role of its insurer in the payment; (3) Whether the Applicants are entitled to interest at 14% from 15th March 2023; and (4) Who should bear the costs of the application. Page 5 of 7

page 5 of 7

8. On the first issue, the Respondent submits that although this Court has jurisdiction to adopt DOSH awards, the relief sought should take into account the Kshs. 506,968/- already paid to the deceased’s estate. 9. On whether it should satisfy the outstanding balance despite the role of the insurer, it asserts that it acted prudently by procuring insurance and seeking enhancement of the cover before the accident, and that the alleged shortfall resulted from the insurer’s failure to implement its instructions rather than any refusal or deliberate failure on its part. It therefore urges the Court to consider those circumstances in determining the appropriate orders. 10. On the Applicants’ entitlement to 14% interest from 15th March 2023, it contends that the Work Injury Benefits Act does not prescribe such interest and that the DOSH award itself contains no direction for interest. Relying on section 26 of the Civil Procedure Act, it submits that the award of interest is discretionary and should be exercised judiciously. It further submits that if the court is minded to award Page 6 of 7

page 6 of 7

interest it should do so at court rates and from a date it considers just. 11. On costs, the Respondent urges the court to grant it the same, contending that it did not act in bad faith or deliberately disregard the DOSH award. Disposition 12. The award of the Director of Occupational Safety and Health (DOSH) is partly settled. The balance it would seem is withheld by a third party. It is the obligation of the employer to satisfy WIBA awards and it cannot hide behind its insurer for the failure to pay the amount due. Consequently, the Court will grant the motion with costs to the Applicants. There will be interest at court rates on the sum outstanding which is Kshs. Kshs. 549,032/- from the date of judgment till payment in full. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 7 of 7

page 7 of 7