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ELRCPartially AllowedELRC Appeal (Nairobi)· [2022] KEELRC 1463 (KLR)

Machini v Safaricom Limited (Appeal E126 of 2021) [2022] KEELRC 1463 (KLR)

Employment and Labour Relations Court
15 June 2022
JGJacob Gakeri
6,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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Kenya's employment court mostly upheld a Kshs 3.55 million workplace hearing-loss award but confirmed injured workers can claim legal costs.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court from the decision of the Director, Occupational Safety and Health Services (DOSHS) of October 18, 2021, which had awarded the appellant, a former Safaricom customer care representative who suffered hearing loss from headphone use, Kshs 3,551,804.54 under the Work Injury Benefits Act, 2007. The appellant sought to quash the Director's decision, contending it lacked reasons, was delivered outside statutory time limits, wrongly denied costs, a constant-assistance allowance under section 15(1) WIBA, and interest, and wrongly fixed the date of manifestation of the occupational disease at December 2011 rather than 2016. The respondent did not file a response, opposing the appeal only through submissions, which the court held do not constitute evidence, rendering the memorandum of appeal uncontested. Applying the Selle v Associated Motor Boat Co principle for first appeals, Gakeri J upheld the Director's findings on jurisdiction, reasons, the 40% permanent incapacity assessment, and the date of manifestation: the 2016 diagnosis was a deterioration of the 2011 condition, justifying computation of compensation on December 2011 earnings. The claims for a constant-assistance allowance and interest failed as the allowance was neither pleaded nor proved and no reason existed to disturb the denial of interest. The court nevertheless found the Director's denial of costs rested on wrong principles - the absence of a costs provision in WIBA and silence in the referral were not good reasons under section 27 of the Civil Procedure Act - and awarded the appellant costs of the claim before the DOSHS and of the appeal. The appeal was accordingly allowed only in part.

Key legal issues

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01

Whether the DOSHS acted ultra vires by failing to give reasons and deciding outside statutory time limits

Holding

The appeal ground fails; the Director systematically identified and determined each issue with reasons, and no excess of statutory power was shown

Reasoning

The court reviewed the Director's decision and found it captured the claim, proceedings, submissions, and dealt with ten identified issues systematically based on evidence and WIBA provisions. The appellant cited no instance of excess of statutory power, so the ground was unsubstantiated and fell away.

p. 8
02

Whether compensation should be computed on 2011 or 2016 earnings

Holding

The DOSHS correctly held that permanent manifestation of the occupational disease was established from December 2011 and used December 2011 earnings

Reasoning

The medical evidence showed moderate to severe sensorineural hearing loss diagnosed in 2011 and bilateral loss in 2016. The 2016 diagnosis was not a new or unexpected disease but a deterioration of the same condition, so the Director's finding under section 30(1) WIBA was upheld.

p. 10
03

Entitlement to costs before the DOSHS

Holding

The DOSHS exercised its discretion on costs on wrong principles; the appellant is awarded costs of the claim and of the appeal

Reasoning

Section 27(1) of the Civil Procedure Act makes costs discretionary and costs follow the event. That the referral did not mention costs, and that WIBA contains no costs provision, are not good reasons to deny costs to a successful claimant who incurred expense prosecuting the claim. The court therefore interfered with the Director's discretion.

p. 13
04

Whether the claimant is entitled to an allowance for constant assistance under section 15(1) WIBA

Holding

No allowance is payable; the claim was neither pleaded nor proved

Reasoning

Neither the statement of claim nor the record referenced a helper or the amount paid. Medical testimony established partial permanent disability with audio perception still possible and other faculties functional, so the claimant did not require constant assistance. The Director's rejection of the claim was upheld.

p. 8

Legal principles established

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  • Submissions do not constitute evidence or pleadings
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions
  • The absence of a costs provision in WIBA does not oust the Director's discretion to award costs; costs compensate the successful party
  • An allowance for constant assistance under section 15(1) WIBA requires proof that the employee cannot perform the essential functions of life without constant assistance

Court orders

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  1. 1.The appeal is allowed only to the extent that the appellant is awarded costs of the claim before the DOSHS and on the appeal
  2. 2.The parts of the appeal contesting interest, jurisdiction of the DOSHS, allowance for assistance, date of manifestation of the occupational disease, failure to consider the entire body of evidence, and material non-disclosure are dismissed

Authorities

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Legislation

  • Work Injury Benefits Act, 2007sections 2, 9(1), 9(1)(c), 10, 15(1), 23, 30(1), 35, 37(1), 40(1)(b) and (2), 53; First Schedule paragraph F
  • Civil Procedure Actsections 26(1), 27(1), 1B
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticles 10, 48, 50, 159(2)(c), 159(2)(d)

Cases cited (11)

  • Shariff Salim & another v Malundu Kikava
    [1989] eKLR
  • Selle & another v Associated Motor Boat Co Ltd & others
    [1968] EA 123-126
  • Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja
    [1986] eKLR
  • Mwanasokoni v Kenya Bus Service Ltd
    (1982-88) 1 KAR 278
  • Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & another
    [2014] eKLR
  • Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Ltd
    [2014] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    [2016] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    [2013] eKLR
  • David Kiptum Korir v Kenya Commercial Bank & another
    [2021] eKLR
  • Stanley Kaunga Nkarichia v Meru Teachers College & another
    [2016] eKLR
  • Prem Lata v Peter Musa Mbiyu
    [1965] EA 592
On appeal from
Director, Occupational Safety and Health Services (DOSHS)
Jurisdiction invoked
First appeal from the Director, Occupational Safety and Health Services under the Work Injury Benefits Act, 2007, following referral by the ELRC in Cause No 202 of 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Machini v Safaricom Limited (Appeal E126 of 2021) [2022] KEELRC 1463 (KLR)", Case Analysis (2022). ELRC Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1463/eng@2022-06-15

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