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ELRCPartially AllowedELRC Memorandum of Claim filed 31st May 2015 (number not stated in judgment)· [2019] KEELRC 1103 (KLR)

David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR)

Employment and Labour Relations Court
18 July 2019
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a mechanic Kshs 1.5 million-plus after a battery explosion blinded one eye and his boss fired him without notice or hearing.

What this practically means

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Executive summary

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The claimant, a mechanic, sued his employer seeking damages for an eye injury suffered on 29th April 2011 when a battery he was lifting at the workshop exploded, splashing acid into his left eye, and for wrongful declaration of redundancy in January 2012 without payment of terminal benefits. The claimant called three witnesses, including a doctor who assessed 30% permanent partial blindness of the left eye. The respondent called no witness, so the claimant's evidence stood uncontroverted. The court framed four issues: the respondent's liability under occupier's liability, the reliefs payable, the validity and fairness of the dismissal, and the terminal benefits due. Applying Sections 6(1), 6(2)(b) and 70(1)(b) of the Occupational Safety and Health Act and Employment Act Sections 36, 41, 43, 45, 46 and 49, the court held the respondent 100% liable for breach of statutory duty in supplying an old, unserviceable battery and failing to provide goggles and a helmet, the claimant having contributed nothing. General damages of Kshs. 1,200,000 were awarded, together with special damages of Kshs. 5,000 and Kshs. 55,000. The termination was found to be a summary dismissal without valid reason or fair procedure, attracting ten months' salary (Kshs. 224,970) and one month's pay in lieu of notice (Kshs. 22,497). Claims for loss of future earnings, arrear salary and accrued leave were dismissed for want of proof. Judgment was entered with interest at court rates from the date of judgment and costs of the suit to the claimant.

Key legal issues

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01

Employer's liability for workplace injury

Holding

Respondent held 100% liable for breach of statutory duty in providing an old, unserviceable battery and failing to provide goggles and helmet; claimant contributed nothing to the accident

Reasoning

The uncontroverted testimony of CW1, CW2 and CW3 established that the battery supplied was old and defective and that no maintenance register was produced. Sections 6(2)(b) and 70(1)(b) of the Occupational Safety and Health Act impose duties on occupiers to ensure safety in handling articles and substances. No negligence was established against the claimant, so the duty of care was not displaced.

p. 4
02

Quantum for the eye injury

Holding

General damages of Kshs. 1,200,000 awarded for 30% partial blindness of the left eye; special damages of Kshs. 5,000 (medical report) and Kshs. 55,000 (surgery) proved and awarded

Reasoning

The court found the injury was not permanent in nature, being partial incapacity of 30%, and the claimant continued working until termination. Special damages for the medical report and the unreimbursed Sabatia Eye Hospital surgery, which the employer was statutorily obliged to pay, were proved to the required standard.

p. 4
03

Lawfulness and fairness of the termination

Holding

Summary dismissal without valid reason and without fair procedure; compensation of ten months' salary plus one month's pay in lieu of notice awarded

Reasoning

The uncontroverted evidence was that the claimant was dismissed in January 2012 without notice, show-cause letter or hearing, and without payment of salary or terminal benefits, violating Sections 36, 41, 43, 45 and 46 of the Employment Act. Under Section 49(1)(c) and (4), ten months' salary was awarded, the injury-related diminution of working capacity being an aggravating factor.

p. 4

Legal principles established

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  • An employer owes a statutory duty of care to provide a safe system of work and safe equipment; the duty is displaced only where the employee's own negligence contributes to the accident
  • Failure to pay notice, salary or terminal benefits renders a termination substantively unlawful and procedurally unfair under the Employment Act
  • Diminution of an employee's capacity to work by a workplace injury is an aggravating circumstance in assessing compensation for unlawful dismissal

Court orders

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  1. 1.General damages for injury suffered at work in the sum of Kshs. 1,200,000
  2. 2.Equivalent of ten (10) months salary in compensation for the unlawful termination of employment in the sum of Kshs. 224,970
  3. 3.One month salary in lieu of notice Kshs. 22,497
  4. 4.Kshs. 5,000 being medical report fees
  5. 5.Kshs. 55,000 being medical expenses
  6. 6.Interest at court rates from date of judgment till payment in full
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSections 36, 41, 43, 45, 46
  • Employment ActSection 49(1)(c) and (4)
  • Occupational Safety and Health Act No. 15 of 2007 / Cap 514 Laws of KenyaSections 6(1), 6(2)(b), 3, 70(1)(b)

Cases cited (5)

  • Boniface Muthama Karita vs Carton Manufacturers Ltd
    CA 670/2003 (2015)
  • Mumias Sugar Company Ltd vs Charles Namatu
    Civil Appeal (CA) 151/1987
  • Purity Wambui Murithii vs Highlands Mineral Water Company Ltd
    (2015) eKLR
  • David Omuteleva Opon vs Dela Rue Currency and Security Print Ltd
    (2017) eKLR
  • George Wakwaika Munyila and 4 others vs The Principal Friends School Kamusinga
    Bungoma ELRC No. 181 of 2014
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and workplace injury claims (Employment Act 2007; Occupational Safety and Health 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, "David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR)", Case Analysis (2019). ELRC Memorandum of Claim filed 31st May 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1103/eng@2019-07-18

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