Kyalo v DPL Festive Limited & another [2025] KEELRC 1410 (KLR)

Kyalo v DPL Festive Limited & another (Miscellaneous Cause E034 of 2025) [2025] KEELRC 1410 (KLR) (15 May 2025) (Ruling)

Neutral citation: [2025] KEELRC 1410 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Miscellaneous Cause E034 of 2025

S Radido, J

May 15, 2025

Between

Nzuva Kyalo

Applicant

and

DPL Festive Limited

1st Respondent

APA Insurand Limited

2nd Respondent

Ruling

1. For determination is a Motion dated 14 February 2025 by Nzuva Kyalo (the applicant) seeking orders:i.…ii.That the Court do adopt the assessment by the Director of Occupational Health and Safety in Claim Reference No. WIBA/NRB/08506/2023 of Kshs 874,422/- as an order of the Court.iii.That the Court do issue a decree in favour of the applicant against the Respondents for the said amount of Kshs 874,422/-.iv.That the Court do issue such other orders as it deems necessary to issue to serve the interests of justice herein.v.That the costs hereof be paid by the Respondents.

2. The grounds in support of the Motion were that the applicant had been injured in the course of work on 18 February 2022; the Director of Occupational Safety and Health had assessed compensation at Kshs 874,422/- on 10 July 2024 and the Respondents were notified of the award but had neglected to pay.

3. The Court gave directions on the Motion on 17 February 2025 and 12 March 2025, and the applicant filed his submissions on 6 March 2025.

4. In the submissions, the applicant asserted that the Court had the power to enforce the award by the Director of Occupational Safety and Health and that the Respondents had no lawful reason to withhold payment (Lagat v Kenya Ordnance Factories Corporation (2024) eKLR; Richard Akama Nyambane v ICG Maltauro Spa (2020) eKLR and Law Society of Kenya v Attorney General & Ar (2019) eKLR).

5. The Respondents caused two replying affidavits sworn by their Legal Officers to be filed on 13 March 2025. The Respondents filed their submissions on 17 March 2025.

6. In the first affidavit, APA Insurance Ltd denied any contractual or legal nexus with the applicant in respect to the action.

7. The Legal Officer of DPL Festive Ltd admitted in her affidavit that the applicant was involved in a road accident on 18 February 2022; a report was made to the Director of Occupational Safety and Health; the Director assessed the injury without permanent incapacity and compensation at Kshs 202,038/-; the applicant was paid full salary while away on sick leave and was not entitled to the compensation of Kshs 202,038/-; the applicant served another notification dated 10 July 2024 with compensation of Kshs 874,422/-; DPL Festive Ltd sent the applicant for a second medical opinion which revealed permanent disability of 5%; APA insurance thereafter lodged an appeal with the Director but the appeal was rejected on 7 October 2024 and that the documents leading to the award of Kshs 874,422/- and the award were forgeries.

8. The Legal Officer filed a further affidavit on 15 March 2025 to place before the Court a correct exhibit.

9. The Respondents urged in their submissions that the 2nd Respondent was merely an insurer and that the award could only be enforced against the 1st Respondent employer, and that it had forwarded to the 1st Respondent a settlement cheque for Kshs 364,665/-.

10. The Court has considered the Motion, affidavits and submissions.

11. The parties have placed before the Court Two Demands for Payment of Work Injury Benefit. The first Demand has 0% permanent disablement with an assessment of Kshs 0/-. The second demand is dated 10 July 2024, and it shows that the applicant sustained 20% permanent disablement with benefit assessed at Kshs 672,384/-.

12. Both demands were assessed by a James Mithanga.

13. The Court cannot establish which of the demands are genuine. It is the said James Mithanga who can unravel the inconsistency.

14. The Court, therefore, issues summons to the said James Mithanga to appear in Court on a date to be agreed on hereinafter to explain the inconsistency.

Orders 15. The Deputy Registrar to serve a copy of this Ruling and a Summons to Appear upon James Mithanga, Director, Occupational Safety and Health, to appear in Court on 26 May 2025 at 9. 00 am.

DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI ON THIS 15THDAY OF MAY 2025. RADIDO STEPHEN, MCIARBJUDGEAPPEARancesFor applicant Florence Mwangangi & Co. AdvocatesFor Respondents Ochieng K. & AssociatesCourt Assistant Wangu