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ELRCAllowedCause No. 1620 of 2014· [2018] KEELRC 655 (KLR)

Charles Gacheche Gicheru v SBI International Holdings AG (Kenya) [2018] KEELRC 655 (KLR)

Employment & Labour Relations Court of Kenya
9 November 2018
1,933 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court made an employer pay over Kshs 1.6 million to a driver injured at work after failing to protect him from danger.

What this practically means

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Executive summary

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The claimant, a driver employed by the respondent from 2010, was attacked by thugs on 15 November 2011 while dumping waste materials at a road construction site near Chepsion trading centre in Kericho. He suffered a head injury and extensive burns when the attackers smashed the truck's window, struck him, and set the vehicle ablaze while he was inside, leaving him with a medically assessed 20% permanent incapacity. He claimed Kshs 671,709 in compensation assessed by the Director of Occupational Safety and Health under the Work Injury Benefits Act (20% permanent plus 4 months' temporary incapacity), confirmed by a medical panel, plus general damages for the respondent's negligence in failing to provide him security amid tribal tension after locally recruited employees were terminated and replaced. The respondent denied employment and negligence but called no witnesses. The court framed three issues: jurisdiction, negligence, and entitlement to relief. It held that WIBA awards lack an enforcement procedure and must be adopted as court judgments, and that under section 12 of the ELRC Act the ELRC is the proper forum for both the statutory and the joined tortious claim. On the unrebutted evidence, it found the respondent solely negligent for denying the claimant security afforded to other non-local employees. Judgment was entered for the claimant for Kshs 671,709 under WIBA with interest from filing, Kshs 1,000,000 general damages, and costs plus interest.

Key legal issues

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01

Jurisdiction of the ELRC over WIBA compensation and the tortious claim

Holding

The court has jurisdiction to adopt the Director's WIBA assessment as its judgment and to hear the related tortious claim, both founded on section 12 of the ELRC Act.

Reasoning

The WIBA Act provides no procedure for enforcing the Director's decisions or awards, so they must be filed in court and adopted as judgments. Since the dispute is between employer and employee, the ELRC is the proper forum under section 12 of the ELRC Act. The tortious claim concerns breach of the employer's duty to the employee, so the same jurisdiction applies; holding otherwise would encourage duplicity of suits and waste judicial time.

p. 2
02

Negligence of the employer

Holding

The claimant proved on a balance of probability that his injuries resulted from the respondent's sole negligence in failing to provide him security while providing it to other non-local employees.

Reasoning

To succeed in negligence, a claimant must prove duty of care, breach, and resultant injury. The unrebutted evidence was that the respondent's Transport Manager knew of the danger the claimant faced in a hostile community but provided security only to newly recruited employees and not to the claimant. The respondent, which called no witnesses, owed a duty of care under the employment contract and common law not to expose the claimant to dangerous conditions.

p. 2
03

Quantum of general damages

Holding

General damages of Kshs 1,000,000 awarded for pain, suffering and loss of amenities, benchmarked against Agnes Wanjiku Ndegwa v Kenya Power & Lighting Company.

Reasoning

The court considered the High Court award of Kshs 1,300,000 in Agnes Wanjiku Ndegwa, where the plaintiff suffered burns from a fallen electric pole with 30-35% permanent incapacity. Since the claimant's injuries (head injury and burns with 20% permanent incapacity) were less severe, and factoring inflation, Kshs 1,000,000 was held reasonable.

p. 3

Legal principles established

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  • Decisions or awards of the Director under the Work Injury Benefits Act, having no in-built enforcement procedure, must be filed in and adopted as judgments of a court of law, and the ELRC has jurisdiction under section 12 of the ELRC Act to adopt and enforce them in employer-employee disputes.
  • The ELRC has jurisdiction to determine tortious claims between employees and employers arising in the course of employment when joined to a pure employment dispute.
  • An employer owes a duty of care, under both the employment contract and common law, to protect employees from dangerous working conditions including hostile local communities.

Court orders

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  1. 1.Compensation under the Work Injury Benefits Act of Kshs 671,709 adopted as judgment of the court
  2. 2.General damages of Kshs 1,000,000 for pain, suffering and loss of amenities
  3. 3.Interest on the WIBA compensation at court rates from the date of filing the suit
  4. 4.Costs of the suit plus interest from the date of the judgment
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act

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, "Charles Gacheche Gicheru v SBI International Holdings AG (Kenya) [2018] KEELRC 655 (KLR)", Case Analysis (2018). Cause No. 1620 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/655/eng@2018-11-09

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