Mutanyi v Heritage Workforce Limited & another (Cause E032 of 2025) [2026] KEELRC 350 (KLR) (6 February 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET CAUSE NO. MISC E032 OF 2025 WYCLIFFE ASAMBA MUTANYI ….…………….…………. APPLICANT VERSUS HERITAGE WORKFORCE LIMITED...............1ST RESPONDENT WESTERN STEEL MILLS LIMITED ………….…… 2ND RESPONDENT RULING 1. Vide a Notice of Motion dated 29th May 2025 filed under section 87 and 90 of the Employment Act, Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and all other enabling provisions of the law, the Applicant seeks the following orders against the Respondents: - a) The Court be and is hereby pleased to adopt the assessment of the Director of Occupational Safety and Health Services as a judgment of the court. b) Judgment be and is hereby entered in favour of the Applicant against the Respondent for the sum of Kshs. 583,200/= (Kenya Shillings Five Hundred and Eighty 1 ELD ELRC MISC. NO. E032 OF 2025 RULING Three Thousand Two Hundred only) with interest at 14% per annum from the date of the award of the Director of Occupational Safety and Health on 3rd May 2023 until payment in full. c) A decree do issue accordingly for execution. d) Costs of this application be awarded to the Applicant. e) Any other reliefs and orders that the court deems just and expedient to grant. 2. The grounds in support of the application are that- a) That the Applicant was employed by the Respondents as a casual worker assigned to the furnace section form the year 2014. b) On or about 2nd March 2021 while in the conduct of his duties within the Respondents’ premises, the Applicant was injured when a crane hook attached to the mold (molten iron) container snapped and broke, causing the mold container to fall onto the Applicant's left leg, fracturing all his left leg toes. c) The Applicant sustained severe bodily injuries leading to the amputation of all his left leg toes. 2 ELD ELRC MISC. NO. E032 OF 2025 RULING d) The Applicant recorded the accident at the directorate of Occupational Health and Safety offices in Uasin Gishu where the injury was processed under the Work Injury and Benefits Act and the compensation was assessed at Kshs. 583,200/= (Kenya Shillings Five Hundred and Eighty Three Thousand Two Hundred1 only). e) The notification of the award, demand for payment as well as several reminders was sent to the Respondents but the Respondents have refused and/ or failed to pay the claimed sums to date. f) The Respondents never lodged an objection disputing the award by the Director of Occupational Health and Safety. g) In the interest of justice this application ought to be allowed. 3. The application is further supported by the affidavit of WYCLIFFE ASAMBA MUTANYI, the Applicant herein in which he reiterates the grounds at the foot of the application. It was the Applicants position that he was employed by the 1st Respondent and deployed in the 2nd Respondent’s premises where the accident causing his injuries happened. 3 ELD ELRC MISC. NO. E032 OF 2025 RULING 4. The applicant avers that he was employed by the 1st Respondent as a casual worker operating in the furnace section of the 2nd Respondent. That on or about 2nd March, 2021 while he was on duty within the 2nd Respondent’s premises carrying out his assigned duties the crane hooks attached to the mold (molten iron) container snapped and broke as the crane operator was operating the machine. That the mold container was dislodged and fell towards the Applicant’s direction, landing at his feet and crushing all his toes on the left leg. He sustained severe bodily injuries leading to the amputation of all his toes on the left leg at Moi Referral Hospital where he was rushed for treatment by the Respondents after the accident and was admitted for several months. 5. The Applicant states that after recovery he reported the accident to the Directorate of Occupational Safety and health in Uasin Gishu in the year 2021. That the County Occupational Safety and Health Officer assessed the compensation on 1st February, 2023 at Kshs. 583,200 based on 27% disability. That notices were issued to the Respondent on 1st February, 2023 and 7th May, 2025 by the office of the County Occupational 4 ELD ELRC MISC. NO. E032 OF 2025 RULING Safety and Health Officer but the Respondent adamantly failed to pay the compensation. 6. The Applicant deposes that the Respondents did not file any objections or appeal against the assessment of compensation by the County Occupational Safety and Health Officer. 7. The Applicant states that the Respondents are under obligation to pay as liability has already been established by the County Occupational Safety and Health Officer. He prays that the prayers in his application be granted. 8. The application is opposed. The 2nd Respondent field a Replying Affidavit sworn by Michael Njuguna, the Human Resource Officer of the 2nd Respondent on 2nd July, 2025 in which he deposed that the Applicant was never an employee of the Respondent and that there was never an employment relationship between it and the Applicant. 9. Mr. Njuguna deposes that the 2nd Respondent had contracted the 1st Respondent to supply and manage manpower at its factory situated in Eldoret and it is the 1st Respondent who employed the Applicant. THAT the contract was renewed every year as per Clause 3.5 of the Contract. 5 ELD ELRC MISC. NO. E032 OF 2025 RULING 10. It is deposed that the agreement renewal which was in force from 1st October 2020 to 30th September 2021, during which period the Applicant alleges to have been injured on or about 2nd March 2021, stated as follows: 3.5: the contractor will buy Workman Injury Benefit Act Compensation Insurance cover for his workers safety (W.I. B.A) buy PPE'S for his workers and will handle matters such as Union matters if any, Occupational Health and Safety Act issues, Disciplinary issues and will deal with Ministry of Labour for matters relating to his employees and will meet all his administrative costs. The PPE's specifications are as follows: Overal, Safety boots, Safety helmet, leather hand gloves, goggles, nose masks. 11. It is the 2nd Respondent’s averment that by virtue of the language of clause 3.5 of the Contract Agreement renewal, it is only the 1st Respondent who can deal with Occupational Health and Safety Act issues of its employees including but not limited to lodging an objection with the County Occupational Safety and Health Officer or compensate the Applicant. 6 ELD ELRC MISC. NO. E032 OF 2025 RULING 12. The 2nd Respondent further avers that all the demand notices issued by the County Occupational Safety and Health Officer were addressed to the 1st Respondent. the 2nd Respondent that it has therefore been wrongly joined in these proceedings. 13. The 1st Respondent did not participate in the proceedings. 14. The Application was canvassed by way of written submissions. The Applicant’s submissions are dated 8th October, 2025 while the 2nd Respondent’s submissions are dated 18th October, 2025. DETERMINATION 15. Having considered the Application, the affidavits of the parties as well as their submissions on record, the only issues for determination are who is liable to pay the Applicant between the 1st and 2nd Respondents and whether the court should confirm the award of the Director as an award of this court and enter judgment accordingly. 16. It is common ground that the Applicant was employed by the 1st Respondent to work in the premises of the 2nd Respondent where he was injured in the course of employment. 7 ELD ELRC MISC. NO. E032 OF 2025 RULING 17. Neither the 1st nor the 2nd Respondents filed objection to the award of the Director which therefore remains valid. 18. It is the 2nd Respondents position that because it was not an employer of the Applicant it is not liable to compensate him for the injuries even though the same were sustained while the Applicant was working at its premises. It is further the argument of the 2nd Respondent that it is not liable because at the material time it had an agreement with the 1st Respondent to take out a Work Injury Insurance Policy to cover the employees of the 1st Respondent working at its premises. 19. Section 6(1) of the Occupational Safety and Health Act provides as the primary duty of occupiers of premises to ensure safety of all persons working in the premises. The section provides: 6. (1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace. 20. Further, section 17 and 18 of the Act provides for duties of occupiers of premises to persons who are not their employees but work in their premises as follows: 8 ELD ELRC MISC. NO. E032 OF 2025 RULING Duties of an occupier of a place of work to persons other than his employees. 17. (1) Every occupier shall conduct his undertaking in such a manner as to ensure, that a person who is not his employee who may be affected thereby is not exposed to risks to safety or health. 18. (1) An occupier of nondomestic premises which have been made available to persons, not being his employees, as a place of work, or as a place where the employees may use a plant or substance provided for their use there, shall take such measures as are practicable to ensure that the premises, all means of access thereto and egress therefrom available for use by persons using the premises, and any plant or substance in the premises provided for use there, are safe and without risks to health. (2) A person who has, by virtue of a contract, lease or otherwise, an obligation of any extent in relation to the—— (a) maintenance or repair of a place of work or any means of access thereto or egress therefrom; or 9 ELD ELRC MISC. NO. E032 OF 2025 RULING (b) prevention of risks to safety and health that may arise from the use of any plant or substance in the place of work, shall for the purpose of subsection (1), be deemed to have control of the matters to which his obligation extends. 21. The 2nd Respondent, being an occupier of the premises where the Applicant was working, is thus liable for the injuries sustained by the Applicant in the said premises. 22. Section 17 of the Work Injury Benefits Act allows an employee to seek compensation from 3rd Parties responsible for their injuries. The section provides: 17. Claims against third parties (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— 10 ELD ELRC MISC. NO. E032 OF 2025 RULING (a) the employee may claim compensation in accordance with this Act and may also institute action for damages in a court against the third party; and (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. (2) In awarding damages in an action referred to in subsection (1)(a) the court shall have regard to the compensation paid in accordance with this Act. (3) In an action referred to in subsection (1)(b), the amount recoverable may not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Act. (4) For the purposes of this section, compensation includes the cost of medical aid already incurred and any amount paid or payable in accordance with the provision of section 15 and, in the case of an allowance, the capitalized value of 11 ELD ELRC MISC. NO. E032 OF 2025 RULING the allowance, irrespective of whether a lump sum is at any time paid in lieu of the whole or a portion of such allowance. 23. In the instant case the Applicant was working for the 2nd Respondent even though he was not an employee of the Respondent. The accident occurred at the premises of the 2nd Respondent. 24. The 1st Respondent was the employer of the Applicant but not the occupier of the premises in which the accident occurred. The 1st Respondent is thus not the primary duty bearer in respect of the injury to the Applicant. The primary duty bearer is the 2nd Respondent, with the 1st Respondent only being liable as an employer and not as the person responsible for the accident. 25. Section 17 of the Work Injury Benefits Act permits the Applicant to sue either or both Respondents. Should the 1st Respondent pay, it would, by virtue of section 17 of the Work Injury Benefits Act, have the right to seek indemnity from the 2nd Respondent and vice versa, depending on who is legally 12 ELD ELRC MISC. NO. E032 OF 2025 RULING responsible for the accident or the agreement between the Respondents. 26. The 2nd Respondent has referred to the agreement signed between it and the 1st Respondent for supply and management of manpower at its factory. The Applicant is not privy to nor a party to the said agreement. The agreement does not affect the Applicant’s legal rights in the event of an injury in the course of work at the 2nd Respondent’s premises. The agreement does not bind the Applicant. Even if it did, the agreement would not oust the 2nd Respondents obligations as the occupier of the premises in which the accident and injury occurred. 27. For these reasons I find the 2nd Respondent liable for the injuries sustained by the Applicant while the Applicant was working for the 2nd Respondent in the 2nd Respondent’s premises. 28. Having not objected to the award of compensation to the Applicant by the County Occupational Safety and Health Officer and the time for making such objections having lapsed, and having not denied that the injury occurred at its premises 13 ELD ELRC MISC. NO. E032 OF 2025 RULING as averred by the Applicant, I find the 2nd Respondent liable to pay the Applicant the awarded compensation in its capacity as the duty bearer in respect of injury at the premises at which the injuries were sustained by the Applicant in the course of working for the 2nd Respondent. 29. In the end, I make the following orders (i) The assessment of the Director of Occupational Safety and Health Services in its award dated 1st February, 2023 is hereby adopted as a judgment of this court. (ii) Judgment be and is hereby entered for the Applicant against the Respondents jointly and severally in the sum of Kshs. 583,200. (iii) Interest shall accrue from date of filing the instant application in this court at court rates until payment in full. 30. The Respondents shall jointly and severally pay the Applicant’s costs of this application. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 6TH DAY OF FEBRUARY, 2026 14 ELD ELRC MISC. NO. E032 OF 2025 RULING MAUREEN ONYANGO JUDGE 15 ELD ELRC MISC. NO. E032 OF 2025 RULING