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ELRCPartially AllowedMemorandum of Claim filed 11th April 2017 (Employment and Labour Relations Court, Nairobi)· [2023] KEELRC 1396 (KLR)

Ongaro v Securex Agencies (K) Limited (Cause E688 of 2017) [2023] KEELRC 1396 (KLR)

Employment and Labour Relations Court
8 June 2023
2,106 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a security guard over Kshs 542,000 after his employer dismissed him without notice or hearing following a snake injury at work.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent on 18th June 2014 at Kshs 12,548 per month, was attacked by a python on 31st January 2015 while on duty at African Quest Safaris Limited offices along Mombasa Road, Nairobi, and suffered venom injury to his face and eyes. He was treated at Guru Nanak Hospital, Avenue Health Centre, Kenyatta National Hospital and Nyamira Hospital, and recuperated at his rural home. The respondent issued a notice to show cause dated 9th February 2015 for alleged absence from 2nd February 2015 and summarily dismissed him by a letter backdated to 16th February 2015, handed over on 19th October 2015 when final dues of Kshs 7,066 were paid. The claimant sought leave pay, notice pay, salary for days worked, damages for unfair termination and enforcement of a DOSH assessment of Kshs 481,843.20 under the Work Injury Benefits Act. The Court believed the claimant's credible testimony, noting R.W.1 contradicted the defence pleadings by admitting the injury. It found the dismissal violated Sections 36, 41, 43 and 45 of the Employment Act - no notice, no hearing, no valid reason - and that the respondent failed to pay medical bills and the DOSH assessment. Judgment was entered for the claimant in the total sum of Kshs 542,112.84, comprising notice pay, leave pay, salary for seven days, the DOSH award and three months' salary as compensation for unlawful summary dismissal, with interest at court rates from the date of judgment and costs of the suit.

Key legal issues

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01

Whether the claimant was injured in the course of duty and whether the dismissal was unfair

Holding

The claimant's testimony was believed; the dismissal violated Sections 36, 41, 43 and 45 of the Employment Act and the respondent failed in its obligations under the Work Injury Benefits Act regime

Reasoning

The Court preferred the claimant's credible and consistent testimony over R.W.1, who contradicted the defence pleadings by admitting the snake-venom injury. The Court noted the respondent failed to call the Zone Manager or HR Manager to controvert the claimant's account of resuming duty and being sent away. The dismissal without notice, hearing or valid reason was unlawful, and the respondent belatedly filed DOSH forms and never paid the assessment.

p. 4
02

Compensation payable for the unlawful dismissal

Holding

The claimant was awarded three months' salary under Section 49(1)(c) and (4) of the Employment Act

Reasoning

The Court considered the claimant's short service of about six months, the serious injury suffered in the course of work, the claimant's non-contribution to the dismissal, and the failure by the respondent to compensate him for the injury and job loss until suit. These were treated as aggravating circumstances justifying the three months' award.

p. 5
03

Enforcement of the DOSH assessment under the Work Injury Benefits Act

Holding

The Court enforced the DOSH assessment of Kshs 481,843.20 which had not been appealed against

Reasoning

The employer belatedly submitted the DOSH forms after summarily dismissing the claimant, and the Director assessed compensation at Kshs 481,843.20. The respondent sought re-assessment but never appealed the assessment, so the Court held itself obliged to enforce payment of the award.

p. 4

Legal principles established

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  • An employer who dismisses an employee must comply with Sections 36, 41, 43 and 45 of the Employment Act - notice, hearing and valid reason
  • An employer is obliged to pay medical bills and compensation for an employee injured in the course of duty, and a DOSH assessment not appealed against is enforceable by the Court

Court orders

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  1. 1.Kshs 12,548 notice pay
  2. 2.Kshs 7,150.64 in lieu of leave
  3. 3.Kshs 2,927.87 for 7 days worked in February 2015
  4. 4.Kshs 481,843.20 being award from DOSH
  5. 5.Kshs 37,644 being compensation for unlawful summary dismissal
  6. 6.Total award of Kshs 542,112.84
  7. 7.Interest at Court rates from date of judgment till payment in full
  8. 8.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 36
  • Employment ActSection 41
  • Employment ActSections 43 and 45
  • Employment Act, 2007Section 49(1)(c) and (4)
  • Work Injury Benefits Actcompensation assessment by Director of Occupational Safety and Health (DOSH)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Work Injury Benefits Act (claim for terminal dues, unfair dismissal and enforcement of DOSH assessment)

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, "Ongaro v Securex Agencies (K) Limited (Cause E688 of 2017) [2023] KEELRC 1396 (KLR)", Case Analysis (2023). Memorandum of Claim filed 11th April 2017 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1396/eng@2023-06-08

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