Kamande & another (Suing as Administrators and Personal Representatives of the Estate of Josephat Macharia Muigai - Deceased) v ACE Freight Limited (Cause 2204 of 2017) [2022] KEELRC 1275 (KLR)
The bottom line
#A Kenyan court ruled an employer can't blame a worker's family for late accident reporting, but sent the compensation claim to a government director to decide.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over WIBA claims filed before Attorney General v Law Society of Kenya
The Court has jurisdiction because the suit was filed on November 6, 2017, before the Court of Appeal decision of November 17, 2017, and at a time when key WIBA sections had been declared unconstitutional by Ojwang J.
The Court applied West Kenya Sugar Co. Ltd v Tito Lucheli Tangale, holding that litigants who filed claims between May 22, 2008 and December 3, 2019 had a legitimate expectation to have their claims heard to conclusion in the courts where lodged. Reference to DOSHS could not arise while Ojwang J's declaration of unconstitutionality stood.
Whether the deceased was negligent
The Respondent failed to establish negligence on the part of the deceased on a balance of probabilities; the police abstract was insufficient.
Although the deceased drove outside permitted working hours without permission, no witness statements or accident report were attached to the abstract, no report identified who was to blame, and negligence is a question of law and fact neither of which was proved. Res ipsa loquitur was inapplicable.
Whether failure to report the accident within prescribed time bars the claim
The employer itself was aware of the accident and bore the statutory duty to report; it could not rely on limitation to defeat the claim, but the 12-month statutory duration had lapsed, so the claim was referred to the Director under section 26(2).
The Operations Manager learned of the accident on the night it occurred, so demanding a further report from the dependants amounted to double reporting. The employer committed offences under sections 21 and 22 of WIBA. Relying on limitation in such circumstances was unconscionable, but the Director retains discretion where claims were not lodged within 12 months.
Legal principles established
#- Employers share the statutory duty to report accidents to the DOSHS; they cannot rely on their own failure to report as a defence to a compensation claim
- A police abstract is not sufficient basis to establish negligence of a driver
- Litigants who filed WIBA claims between May 22, 2008 and December 3, 2019 are entitled to have them heard by the courts on legitimate expectation grounds
Court orders
#- 1.The claim is referred to the Director, Occupational Safety and Health Services for determination
- 2.The Director may award costs as necessary
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over work injury claims under the Work Injury Benefits Act, 2007 (Court held it had jurisdiction notwithstanding the timing of Attorney General v Law Society of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande & another (Suing as Administrators and Personal Representatives of the Estate of Josephat Macharia Muigai - Deceased) v ACE Freight Limited (Cause 2204 of 2017) [2022] KEELRC 1275 (KLR)", Case Analysis (2022). Cause No 2204 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1275/eng@2022-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.