Simon Nanzayi Acheyia v Alloy Steel Castings Limited & another

e) That the Respondents be ordered to shoulder the costs of the application. 2. The application is anchored on the grounds on the face thereof and on the affidavit sworn by the Applicant. The Applicant avers that he is an employee of the 1 st Respondent. 3. The Applicant further avers that he suffered an injury on 22 nd February 2024 whilst on duty. He contends that although the Director awarded him compensation for the injuries in the sum of Ksh. 1,855,169.40, the Respondents are yet to pay the amount. 4. The Applicant avers that according to the law, the Respondents were to have paid the amount in the award within 90 days from the date they were notified of the award. He avers that if they (the Respondents) were dissatisfied with the award, they had a window of 60 days to object to it and lodge an appeal but did not do so. As such, he contends that the award is ripe for adoption for purposes of enforcement. 5. The record shows that both Respondents were served with the application. However, only the 2 nd Respondent entered appearance in the cause and filed grounds of objection to the application. As such, it is deemed that the 1 st Respondent has not opposed the application. 6. The 2nd Respondent contends that it is not a proper party to the action. It avers that the law places the obligation to MISCELLANEOUS APPLICATION NO. E086 OF 2026 2

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settle awards by the Director on the employer and not third parties. 7. The 2nd Respondent avers that the Applicant has not exhibited an insurance policy upon which he seeks to hold it liable to settle the award. It further contends that the proceedings before the Director did not involve it and the award under consideration was not rendered against it. Analysis 8. The court has scrutinized the award dated 2 nd April 2025 and it is apparent that it was directed against the 1 st Respondent. The 2nd Respondent is not mentioned anywhere in the award. There is also no indication that the 2 nd Respondent was either aware of or participated in the proceedings before the Director. 9. The court’s role at this stage of the proceedings is to adopt the award as it is (Charles v Cheto [2025] KECA 784 (KLR)). It (the court) is not entitled to introduce new parties, including alleged insurers of the employer, into the award if they were not party to the proceedings before the Director (Moraa v Commission on Administrative Justice [2026] KEELRC 72 (KLR) & Andrew & another (Suing for and on Behalf of Andrew Marago Ndindi- Deceased) v Midland Hauliers Ltd & another [2025] KEELRC 3613 (KLR)). 10. The Applicant is not entitled to drag the 2 nd Respondent into the cause on the assertion that it was the 1 st Respondent’s MISCELLANEOUS APPLICATION NO. E086 OF 2026 3

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insurer if the 2nd Respondent was not a party to the action before the Director and if the award by the Director is not directed at it (the 2nd Respondent). If the Applicant wishes to pursue the 2nd Respondent to settle the award, it should do so through separate declaratory proceedings and not through the instant Commission on adoption process Administrative (Moraa v Justice [2026] KEELRC 72 (supra)). 11. I have considered the decision in the case of Eboso v WeldCon Limited & another [2025] KEELRC 2784 (KLR) where the learned Judge took the view that the employer and insurer are jointly liable to settle a Director’s award under the Work Injury Benefits Act. On my part, whilst acknowledging that section 7 (1) of the Act requires employers to maintain insurance cover for workplace injuries and occupational diseases, I understand the law to be that the principal obligation to settle awards under the Act rests with the employer. This position flows from section 10 (2) of the Act which states as follows:‘’An employer is liable to pay compensation in accordance with the provisions of this Act to an employee injured while at work.’’ 12. An employer’s insurer can only be obligated to settle an award under the Act if judgment has been entered against it (the insurer) through a separate declaratory suit or if the insurer was a principal party to the proceedings before the MISCELLANEOUS APPLICATION NO. E086 OF 2026 4

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Director. That an award should only be enforced against the insurer if it was party to the proceedings before the Director appears to be the import of section 26 (4) of the Act which provides as follows:‘’An employer or insurer against whom a claim for compensation is lodged by the Director under this section, shall settle the claim within ninety days of the lodging of the claim.’’ Emphasis added by underlining. 13. The above provision is clear that only employers or insurers against who a claim has been lodged before the Director are liable to settle the Director’s award. As such, an award cannot be enforced against either an employer or insurer who was not a party to the proceedings before the Director unless, in the case of the insurer, there has been obtained a judgement against it in a separate declaratory suit. 14. Importantly, I note that in the aforesaid decision, the learned Judge issued an order against the insurer after it (the insurer) admitted that it had a valid insurance cover for the employer for the injury under consideration. In contrast in the case before me, no evidence has been tendered by the Applicant to demonstrate that the 2nd Respondent had issued the 1st Respondent insurance cover for the injury under review. 15. In their submissions, counsel for the Applicant seek to circumvent their client’s duty to tender evidence to prove existence of a valid insurance cover by asserting that their MISCELLANEOUS APPLICATION NO. E086 OF 2026 5

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client’s statement on oath that the 2 nd Respondent had issued the 1st Respondent a valid cover has not been properly challenged because the 2 nd Respondent filed grounds of opposition instead of an affidavit to speak to the matter. With respect, I do not agree with this position. 16. Rule 48 of the Employment and Labour Relations Court (Procedure) Rules, 2024 entitles a Respondent in an application to oppose it (the application) by either filing a replying affidavit or grounds of opposition or a preliminary objection. Whatever the Respondent elects to file from the three instruments, it (the Respondent) will be deemed to have filed a proper response to an application. 17. The rules of evidence remain unchanged, whether one is dealing with oral or affidavit evidence. The party who wishes the court to return a finding in his favour on a contested issue bears the burden of proving the issue (see sections 107, 108 and 109 of the Evidence Act). 18. In this case, it is the Applicant who alleged that the 2 nd Respondent has a valid insurance cover for the 1 st Respondent to cover the injuries under review. Therefore and in terms of the above provisions of law, he bore the burden of demonstrating that the 2nd Respondent indeed had issued insurance cover to the 1 st Respondent. He cannot run away from this obligation by merely asserting that because the 2nd Respondent responded to his assertion that it has a valid cover for the injury in question through Grounds of MISCELLANEOUS APPLICATION NO. E086 OF 2026 6

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Opposition as opposed to a replying affidavit, it is deemed to have admitted existence of the cover. 19. Having regard to the foregoing, the Applicant’s quest to adopt the award against the 2 nd Respondent is misguided. Accordingly, it is declined. 20. With regard to the 1 st Respondent, the court is satisfied that the award under consideration was issued against it (the 1 st Respondent). There is no evidence to suggest that the 1 st Respondent either objected to or appealed against the award as required under sections 51 and 52 of the Work Injury Benefits Act. Similarly, there is also no evidence to suggest that the 1st Respondent has paid the award. In the premises, the award is ripe for adoption and this court has the requisite jurisdiction to adopt it as its judgment (see Charles v Cheto [2025] KECA 784 (KLR)). Determination 21. Accordingly, the court adopts the Director’s award dated 2 nd April 2025 as a judgment of the court with the consequence that judgment is hereby entered in favour of the Applicant against the 1st Respondent for Ksh. 1,855,169.40 as per the award. 22. Further, the court awards the Applicant interest on the award at court rates from the date of the award, that is to say, 2nd April 2025. 23. Costs of the application are granted to the Applicant. MISCELLANEOUS APPLICATION NO. E086 OF 2026 7

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24. For the avoidance of doubt, the claim against the 2 nd Respondent is dismissed. Dated, signed and delivered on the 8th day of October, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Applicant …………….for the Respondent ORDER In light of the directions issued on 12 th 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 MISCELLANEOUS APPLICATION NO. E086 OF 2026 8

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rulings shall be dated, signed and delivered in the open court. B. O. M MANANI MISCELLANEOUS APPLICATION NO. E086 OF 2026 9

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