AWW & another (Suing on Behalf of the Estate of the Late Paul Weru Maina - Deceased) v Satellite Options and Solutions Ltd (Miscellaneous Application E371 of 2025) [2025] KEELRC 3763 (KLR) (15 December 2025) (Ruling)

AWW & another (Suing on Behalf of the Estate of the Late Paul Weru Maina - Deceased) v Satellite Options and Solutions Ltd (Miscellaneous Application E371 of 2025) [2025] KEELRC 3763 (KLR) (15 December 2025) (Ruling) Neutral citation: [2025] KEELRC 3763 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E371 of 2025 ON Makau, J December 15, 2025 Between AWW 1st Applicant MWN 2nd Applicant Suing on Behalf of the Estate of the Late Paul Weru Maina - Deceased and Satellite Options and Solutions Ltd Respondent Ruling Introduction 1.This Ruling relates the Notice of Motion dated 13th October 2025 seeking the following orders:-a.The instant suit Miscellaneous Application E371 of 2025 be and is hereby struck out with costs to the Respondent.b.Costs of this application be borne by the Applicants. 2.The Motion is brought by the Respondent in the suit and it supported by an Affidavit sworn by the Applicant’s Human Resource Manager, one Ms. Hannah Wanjira Ngugi on 13th October 2025. The Motion was opposed by Replying Affidavit sworn on 16th October 2025 by Ms. AWW and it was disposed of by written submissions. Facts 3.On 11th March 2020, one Paul Weru Maina (deceased) was involved in a fatal accident while in the course employment by the Applicant and on 22nd July 2021 the Director of Occupational Safety and Health Services (Director) assessed compensation at Kshs. 4,141,920/-. The said assessment was never challenged by either the employer or the deceased’s next of kin and the funds were deposited with the Public Trustee on 4th August 2021. 4.By a letter dated 28th November 2023, the Director indicated the manner of distribution of the said compensation including the deceased’s widow, children and parents. On 27th February 2024 the Public Trustee issued cheques as directed by the Director but the administrators of the deceased’s estate were not pleased with the Director’s distribution of compensation and on 24th February 2025 filed a Motion in Nairobi Chief Magistrate’s Succession Cause No. E138 of 2024 seeking an order to compel the Applicant herein (employer) to release the whole compensation award to them. They also sought for order compelling the Public Trustee to render an account of the funds deposited by the employer as compensation for the deceased. 5.After hearing both sides the Court dismissed the Motion by the administrators of the deceased’s estate and adopted the schedule of distribution given by the Directors as follows:-a.AWW Kshs. 986,171.41b.BM (Son Minor) Kshs. 986,171.41c.SN (Daughter Minor) Kshs. 986,171.41d.RW (Daughter Minor) Kshs. 986,171.41e.RN (Mother) Kshs. 98,617f.FMR (Father) Kshs. 98,617 6.The parents of the deceased collected their respective cheques dated 9th April 2025 but the rest of the beneficiaries did not instead, the administrators of the deceased estate filed the originating Motion dated 25th September 2025 seeking for the following orders:-a.That, this Originating Motion be and is hereby certified as urgent.b.That, the Honourable Court do adopt the award of the Director of Occupational Safety and Health Services in the sum of Kshs. 4,141,920 granted in favour of the late PAUL WERU MAINA (Deceased) against the Respondent as the judgment of the Court.c.That, a Decree do issue accordingly for execution.d.That, the costs of this Motion be borne by the Respondent. 7.The Originating Motion is now under challenge for being res judicata and an abuse of the process of the Court. The administrators are of a contrary view and are contending that their motion is only for adoption of the award and enforcement against the employer as they have not yet received the award of compensation. They also faults the Director for exceeding his legal mandate by directing on how the compensation is to be distributed including strangers to the estate of the deceased. 8.Having considered instant Motion, Replying Affidavits, submissions and the impugned Originating Motion, the main issues for determination is whether the originating Motion should be struck out. Analysis 9.The Applicant contends that the Originating Motion dated 25th September 2025 is res judicata. Section 7 of the [Civil Procedure Act](/akn/ke/act/1924/3) provides that:-“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 10.I have perused the Notice of Motion dated 24th February 2025 which was filed in the lower Court and it is clear that it sought release of the compensation assessed by the Director of Occupational Safety and Health Services, and for the Ministry of Labour to render accounts of all the funds surrendered to it by the Public Trustee in respect of the deceased employee. 11.The impugned Originating Motion basically seeks adoption of the Director’s award as judgment of this Court, and issuance of a decree for execution against the employer. Having considered the orders sought in the Originating Motion and the previous Notice Motion in the lower Court, I see no similarity in them. Whereas the parties and the subject matter are the same, the orders sought are not the same. Besides the orders sought in the Origination Motion were never conclusively determined previously by a court of competent jurisdiction. 12.However, there is no dispute that the Director assessed compensation for the deceased and no challenge was made by either the employer and the deceased’s next of kin. There is also no doubt that the employer complied with the award by the Director by depositing the whole compensation with the Public Trustee for the benefit of the deceased’s next of kin. It is also clear from the record that the next of kin through the administrators of the estate of the deceased moved the subordinate court by Notice of Motion dated 24th March 2025 and the court upheld the distribution of the compensation as directed by the Director of Safety and Health Services. 13.In view of the foregoing matters, I find that the Originating Motion dated 25th September 2025 is overtaken by events, frivolous and an abuse of the process of the Court. The purposed of requesting the Court to adopt and enforce awards from Alternative Dispute Resolution Mechanism is availed to parties only when necessary, like say, when the opposite party defaults. 14.The relevant law applicable here is Rule 69 of the Employment and Labour Relations Court Procedure Rules 2024 which provides that:-“(1)(1) Where parties have entered into a conciliation, negotiation or mediation agreement, or, are bound by an arbitral award or a lawful decision reached in Alternative Justice Systems, a party may file the award, decision or agreement for adoption and enforcement as an order of the Court.(2)An application under sub-rule (1) shall be by way of a miscellaneous application instituted through a notice of motion supported by an affidavit exhibiting the award, decision or agreement together with all relevant documents.” 15.The above Rule contemplates the purpose of the adoption of the award to be enforcement. It follows that where the award has not been challenged and the employer has complied with the director’s directive to pay the assessed damages, the matter should naturally come to an end. Filing an application for adoption of the award and seeking a decree for execution when the employer has released the whole award, like in this case, amounts to frivolity and abuse of the process of the court. 16.Before concluding this ruling, I must observe that the procedure followed to invoke this Court Jurisdiction by Originating Motion is strange to the Employment and Labour Relations Court Procedure Rules 2024. The procedure provided under Rule 69 above is filing of a Notice of Motion and not an Originating Motion. Consequently, the Originating Motion is defective and incompetent. Parties seeking a court of law to grant them orders must first familiarize themselves with the procedures of the Court. Conclusion 17.I have found that the Originating Motion is not re judicata. However, I have found that it is fatally defective and incompetent. It is also overtaken by events and devoid of merits since the employer has complied with the decision of the Director of Occupational Safety and Health Services. Consequently I strike out the Originating Motion dated 25th September 2025 with costs. **DATED, SIGNED AND DELIVERED VIRTUAL IN OPEN COURT AT NAIROBI THIS 15 TH DAY OF DECEMBER, 2025.****ONESMUS MAKAU****JUDGE** Appearance:Kiluva for the ApplicantMuchera for Githiri for the Respondent