Rosa Jeruto Rop v Lavington Security Limited

2. The application is expressed to be brought under Article 162 of the Constitution, Section 12 of the Employment and Labour Relations Act 2007, Rule 69 of the Employment and Labour Relations Court Act [Procedure] Rules, 2024, Sections 19(2) and 51 of the Work Injuries Benefits Act, Orders 40 and 51 of the Civil Procedure Rules, 2010, Article 159[2][d], the inherent jurisdiction of the Court and all enabling provisions of the law) 3.The application is based on the grounds on the face of it and supported with the affidavit of the Applicant sworn on even date with several annexures thereto. 4.Though duly served as per the affidavit of service on record, the Respondent did not respond to the application. 5.The court directed that the application be canvassed by way of written submissions. Miss Ndambuki for the Applicant filed written submissions dated 10th June 2026. II. THE EVIDENCE 6.In the supporting affidavit, the relationship between the Applicant and the late Alex Kipchirchir Langat (the deceased), who was until his death an employee of the Respondent as a security guard, is not disclosed. However, in the annexed limited grant of letter of administration ad litem the Applicant is described as the personal representative of the deceased. KAK ELRC MISC APPL. E014 OF 2026 RULING 2 | PAGE

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7. It was deposed that the deceased died on 18th January 2014 as a result of injuries sustained at work on 11th January 2014. The accident was reported to the Directorate of Occupational Safety and Health (DOSH), as per the annexed notification of the death at work by the Respondent. 8. It was further deposed that DOSH assessed the loss and made an award of Kshs1,008,000/= in compensation. The Respondent was notified of the award and demanded to settle the same vide a notice by DOSH dated 14th May 2015. This award was neither objected to nor appealed by the Respondent but yet no payment was made. A copy of the demand notice was attached as evidence. 9. The Applicant asked the Court to, besides the above assessed amount, award to the estate of the deceased a sum of Kshs350,000/= being reasonable burial/funeral expenses. III. SUBMISSIONS 10. Counsel for the Applicant identified the following two issues for determination – i. Whether the Applicant is entitled to burial expenses amounting to Kshs. 350,000/=? ii. Whether the Applicant has satisfied the threshold for adoption of the award as a judgment of the Court. 11. On the first issue, it was submitted that reasonable burial expenses are payable under Section 34 of the Work Injury Benefits Act KAK ELRC MISC APPL. E014 OF 2026 RULING 3 | PAGE

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(WIBA). It was further submitted that while the regulations envisaged under Section 56 of the Act have not been promulgated, the Court should not be helpless and should order for and allow such reasonable expenses under that head. This Court was urged to follow and uphold its finding in Ndaya & Another V Handyman Staffing Solutions & Another (2026) KEELRC 13 (KLR) where this Court awarded a sum of Kshs3000,000/= as reasonable funeral expenses. 12. The Court was urged to allow the claimed sum of Kshs350,000/= as reasonable burial expenses. 13. On the second issue, it was submitted that it was not disputed that the deceased suffered fatal injuries at work on 11th January 2014 and that the accident was reported to the Directorate of Occupational Safety and Health Services (DOSH) in accordance with WIBA. 14. It was further submitted that DOSH assessed the compensation in the sum of Kshs1,008,000/= and the Respondent was notified and demanded to settle the same in a notice of 14th May 2015. 15. It was further submitted that the Respondent did not object to or appeal the award as provided for in the law and as such the awarded compensation is due and payable to the Applicant as prayed in the application. Counsel cited Bakari V Spanish Coach Express Limited & Another (2025) KEELRC 2351 (KLR) in support of that argument. IV. ISSUES FOR DETERMINATION KAK ELRC MISC APPL. E014 OF 2026 RULING 4 | PAGE

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16. The factual background leading to this application has been set out by the Applicant in the supporting affidavit and by her Counsel in the written submissions as per the summary in the preceding parts of this ruling. The gist of the application is that DOSH made an award as alluded to above and since 2015, when the award was made, the Respondent has neither settled the award nor made acceptable or reasonable proposals on the settlement of the same. It is also not in dispute that the Respondent neither objected to the award nor appealed the same, notwithstanding that it was duly notified and demanded to settle the same. 17. The Respondent did not respond to the application although duly served. No hard copies of response and submissions were supplied to the court. 18. Upon the court considering the evidence availed by the Applicant by way of the supporting affidavit together with the annexures thereto and the arguments advanced in the submissions by her Counsel, the following issues commend themselves to the court for determination(i) Was the application filed outside the statutory limitation period? (ii) If (i) above is in the negative, is the Applicant entitled to the prayers sought in the application? (iii) Costs. 19. The Court has deliberately raised the first issue above for what appears to be an inordinate delay on the part of the Applicant in filing the application. It is not in dispute that the deceased died on KAK ELRC MISC APPL. E014 OF 2026 RULING 5 | PAGE

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18th January 2014 – more than 12 years ago. The application herein was filed in court on 4th May 2026 or thereabout. The Applicant obtained limited grant of letter of administration ad litem from the Chief Magistrate’s Court at Kapsabet on 30th April 2026. 20. The fatal accident was reported to DOSH on 19th March 2014 and the notice of the award and demand for payment was served upon the Respondent on 14th May 2015. 21. There is no explanation in the supporting affidavit as to why it took the Applicant over 12 years to obtain the limited grant and to make this application. 22. Section 4(1)(c) of the Limitation of Actions Act provides as follows – 4(1) The following actions may not be brought at the end of six years from the date on which the cause of action accrued – (a) ……………………………….. (b) ……………………………….. (c) actions to enforce an award. 23. The above law applies the word “may” deliberately because the window of six years as provided may be extended under Sections 26, 27, & 28 of the Act. 24. No evidence was availed in Court that the Applicant indeed sought leave to have the six years period extended as to allow her file the instant application. Even if the court assumed that the action accrued after the period for challenging the award expired, there still remains KAK ELRC MISC APPL. E014 OF 2026 RULING 6 | PAGE

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unexplained and inordinate delay of over 12 years before the instant application was brought to Court. 25. In my considered view, what the Applicant ought to have done was to seek leave for extension of the six years period alluded to above, as to allow and enable her make the application out of time. No evidence was availed to me that this was done. 26. In the circumstances, while it would have been easy to allow the application as unopposed, justice dictates that the law be complied with to avoid a situation where the Court shall be acting and rubberstamping a violation or breach of the very law that it is supposed to enforce. 27. In the circumstances, and for the reasons stated above, the Court finds and holds that the application was filed way outside the period delineated by the law and without the leave of the Court. VI. ORDERS (i) The notice of motion by the Applicant dated 4th May 2026 is hereby struck out for having been filed out of time without leave of the Court. (ii) No order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 1ST DAY OF OCTOBER, 2026. .................................... DAVID NDERITU KAK ELRC MISC APPL. E014 OF 2026 RULING 7 | PAGE

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JUDGE KAK ELRC MISC APPL. E014 OF 2026 RULING 8 | PAGE

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