Moses Osore v Cobra Security Company Limited [2018] KEELRC 1428 (KLR)
The bottom line
#A Kenyan employer must pay an injured guard's work injury dues directly and cannot pay below the statutory minimum wage, whatever the contract says.
What this practically means
#Executive summary
#Key legal issues
#Liability for the WIBA assessment where the insurer is not a party
The Respondent is liable to pay the WIBA dues, with summary recovery against it if unpaid within 14 days
The court found the Claimant was injured in the course of duty and was never paid his WIBA dues despite assessment. Because the payment under WIBA normally flows through the employer, who is the insured, it was mischievous to direct the employee to follow up with the insurer. The employer was therefore ordered to pay within 14 days failing which the sum is recoverable summarily with interest at commercial rates.
Underpayment against the statutory minimum wage
The Claimant was underpaid; he was entitled to the statutory minimum for a night watchman in Nyeri
The Respondent's own witness confirmed the Claimant earned about Kshs. 6,000/- per month. Under the Regulation of Wages (General)(Amendment) Order 2015, a night watchman in Nyeri was entitled to Kshs. 11,330/-, inclusive of house allowance unless stated otherwise. The court awarded the difference between what was earned and the statutory minimum from May 2014 to the last month of service in October 2015.
Overtime and rest days
The Claimant worked a 6-day week with 4 extra hours daily; the 4 days off per month could not compensate overtime
The Respondent's witness confirmed the Claimant reported at 6.00pm and worked to 6.00am with one day off weekly, said to compensate the extra hour from 5-6, and that 4 days off monthly compensated extra hours. The court held rest days are a separate entitlement and cannot substitute for overtime pay, awarding overtime at 4 hours per day at the hourly rate for a night watchman in Nyeri as a former municipality.
Desertion versus failure to return to work
After the injury the Claimant was not returned to work; the claim that he absconded did not defeat the award of compensation
The court noted the competing accounts: the Claimant said he was told to report back after healing and would be re-employed; the Respondent said he deserted and was uncooperative. The court found it clear that after the injury the Claimant was not returned to work, and went on to award compensation capped at 8 months' pay.
Legal principles established
#- WIBA dues are payable to an injured employee through the employer, which is the insured; the employee cannot be made to follow up with the insurer directly
- An employee is entitled at the least to the statutory minimum wage notwithstanding any lower contractual wage agreed
- Rest days cannot be treated as compensation for overtime worked
- Registration of an employee under NSSF does not exempt an employer from liability where statutory dues have not been remitted
Court orders
#- 1.Payment of WIBA claim per the assessment made, in default within 14 days attracting commercial rates of interest from date of filing suit till payment in full
- 2.Payment of the difference between the 6,000/- earned and the amounts in the Regulation of Wages (General)(Amendment) Order 2014 and the difference between 6,000/- and Kshs. 11,300/- for the months between May 2014 and October 2015
- 3.Compensation of Kshs. 90,400/- being 8 months' pay
- 4.Payment of overtime worked at the rate of 4 hours in a day multiplied by the hourly rate for a night watchman in Nyeri
- 5.Costs of the suit
- 6.Interest on the sums in ii, iii, iv and v at court rates from the date of judgment till payment in full
- 7.Certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Work Injury Benefits Act claim for injuries in course of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Osore v Cobra Security Company Limited [2018] KEELRC 1428 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1428/eng@2018-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.