Charles Gacheche Gicheru v SBI International Holdings AG (Kenya) [2018] KEELRC 655 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over WIBA compensation and the tortious claim
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.
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.
Negligence of the employer
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.
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.
Quantum of general damages
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.
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.
Legal principles established
#- 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
#- 1.Compensation under the Work Injury Benefits Act of Kshs 671,709 adopted as judgment of the court
- 2.General damages of Kshs 1,000,000 for pain, suffering and loss of amenities
- 3.Interest on the WIBA compensation at court rates from the date of filing the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.