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ELRCPartially AllowedNot stated in excerpt· [2014] KEELRC 1510 (KLR)

Josephat Kariuki Kirangi v Bob Mill Industries Ltd [2014] KEELRC 1510 (KLR)

Employment and Labour Relations Court
11 December 2014
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employer must pay an injured driver's medical bills and wages, even though his job ended through incapacity, not unfair dismissal.

What this practically means

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Executive summary

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This Employment and Labour Relations Court judgment at Nakuru, delivered by Radido Stephen J on 11 December 2014, concerned a Claimant driver injured in a road traffic accident on 6 December 2010 while on an official journey to Kitale. The court framed the issues as whether the Claimant was terminated or deserted duty, whether any termination was unfair, and the entitlement to damages, incapacitation salary, leave allowance, service pay and a certificate of service. The Claimant testified that after the accident he was hospitalised, obtained medical certificates certifying unfitness and 25% permanent incapacity, and that the Respondent's officers stopped communicating with him; he was last paid wages in March 2011. Applying section 47(5) of the Employment Act, 2007, the court held the Claimant failed to prove termination or unfair termination, finding instead that the employment contract was frustrated by his health condition, and declined to determine unfairness or the desertion defence. However, reliefs independent of termination succeeded: under rule 2(2) of the Employment (Medical Treatment) Rules 1977 the Respondent was ordered to pay unpaid medical expenses of Kshs 132,018/-; accrued leave of Kshs 15,791/- was awarded under sections 28 and 10(3) and (7) because the employer produced no employment records; and three months' wages from April to June 2011 (Kshs 53,823/-) were awarded as salary during incapacitation. Service pay was refused as the Claimant was an NSSF member. The Respondent was ordered to issue a certificate of service, with costs to the Claimant assessed at Kshs 45,000/-, total award Kshs 201,632/-.

Key legal issues

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01

Whether the Claimant's services were terminated or he deserted duty

Holding

The Claimant failed to prove termination; the contract was frustrated by his incapacity

Reasoning

The medical certifications showed the Claimant lost function in one knee and could not drive. The statutory burden under section 47(5) to prove unfair termination was not discharged. The 25 weeks of incapacitation ran to June 2011, when the contract was frustrated by his health condition. The court did not need to decide unfairness or desertion.

p. 2
02

Unpaid medical expenses

Holding

Awarded in full as claimed, Kshs 132,018/-

Reasoning

Injury in the course of employment was not disputed. Rule 2(2) of the Employment (Medical Treatment) Rules 1977 placed a statutory obligation on the employer to meet all expenses arising from the injuries. The court found for the Claimant in the sum claimed.

p. 2
03

Leave allowance

Holding

Accrued leave of Kshs 15,791/- awarded

Reasoning

The Claimant took no leave in his slightly over one year of service and was entitled to at least 21 days leave with full pay under section 28. Employers must keep employment records; none were produced, and under section 10(3) and (7) the court found for the Claimant.

p. 3
04

Wages during incapacitation

Holding

Three months' wages from April to June 2011, Kshs 53,823/- awarded

Reasoning

Although the 12-month claim had no contractual or statutory basis, uncontroverted evidence showed wages were paid only to March 2011. The Claimant was entitled to wages up to 16 June 2011 when certified incapable; the court awarded three months at Kshs 17,941/- per month.

p. 3
05

Certificate of service

Holding

To be issued

Reasoning

A certificate of service is a statutory right of an employee, and the Respondent had in its pleadings admitted readiness to issue one. The court ordered it issued.

p. 3

Legal principles established

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  • An employee bears the statutory burden of proving unfair termination under section 47(5) of the Employment Act
  • An employer is statutorily obliged to meet medical expenses arising from injuries sustained in the course of employment

Court orders

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  1. 1.Award of unpaid medical expenses of Kshs 132,018/-
  2. 2.Award of accrued leave of Kshs 15,791/-
  3. 3.Award of wages April to June 2011 of Kshs 53,823/- (total Kshs 201,632/-)
  4. 4.Respondent to issue the Claimant with a certificate of service
  5. 5.Costs to the Claimant assessed at Kshs 45,000/-
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Josephat Kariuki Kirangi v Bob Mill Industries Ltd [2014] KEELRC 1510 (KLR)", Case Analysis (2014). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1510/eng@2014-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.