Kathambi v Safaricom Ltd (Cause 1986 of 2014) [2023] KEELRC 1772 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant suffered occupational injury or illness, in the course of employment with the respondent
- 2.Whether the injury or illness was occasioned through the respondent's negligence, by failure to provide safe and proper work environment
- 3.Whether the claimant merits general and special damages, cost of future medical treatment, certificate of service, costs and interest
Key legal issues
#Occupational injury or illness
The claimant suffered vocal cord paralysis (functional dysphonia) attributable to her occupation
She passed ENT medical examination on recruitment; multiple medical reports from Professor Macharia, Dr Rupani, Aga Khan and Nairobi Hospitals and Professor Kiama linked the dysphonia to prolonged voice use at the call centre, establishing an occupational origin.
Employer's negligence and failure to provide a safe system of work
The respondent was negligent in failing to provide safe call devices and a safe system of work
The respondent adduced no evidence relevant to the period of employment: no procurement records, no proof of the devices in use, no training on the analogue-to-digital changeover, and no proof of adequate breaks or shift management. Its witness could not give technical evidence, so the claimant's uncontroverted evidence stood.
Quantum of general damages
General damages of Kshs 2,500,000 awarded; the court disbelieved some exaggerated particulars of injury
The court relied on its discretion guided by precedent, considering the mental anguish, loss of amenities and loss of employment at age 31, but preferred the last report of Professor Macharia showing her voice was improving and disbelieved unsupported claims such as total loss of voice for 3 years.
Cost of future medical treatment
Declined for lack of proof
The claimant recovered her voice per her own evidence and Professor Macharia's last report; she filed no cost of future care report and made no accurate evaluation of future needs, so the court could not assess future care.
Special damages
Declined for failure to specifically plead and prove
The claimant pleaded no specific figure, pleaded receipts would be supplied, but exhibited none for medical expenses or reports, contrary to the requirement in Hahn v Singh.
Legal principles established
#- An employer owes a duty to provide adequate equipment and a safe system of work
- Special damages must be specifically pleaded and specifically proved
Court orders
#- 1.The respondent shall avail the claimant her certificate of service
- 2.General damages for pain, suffering, mental anguish and loss of amenities awarded at Kshs 2,500,000
- 3.Costs to the claimant
- 4.Interest allowed at court rate from the date of judgment till payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment injury claim (originally filed at the Chief Magistrate's Court, Nairobi)
Relief refused
#Special damages
Not specifically pleaded or proved; no specific figure pleaded and no receipts exhibited
Cost of future medical treatment
Claimant recovered her voice; no future care report or accurate evaluation placed before the court
Costs
Costs to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In Sum, it is Ordered a. The respondent shall avail the claimant her certificate of service. b. The prayer for general damages for pain, suffering, mental anguish, and loss of amenities is allowed at Kshs 2,500,000.
There is sufficient evidence to show that the respondent acted negligently, and did not provide the claimant with proper and safe call devices, and a safe system of work.
The court is satisfied that the claimant suffered injury or illness to her throat, specifically to her vocal cords, and the injury or illness was occupational.
The claimant did not establish her claim for cost of future medical treatment.
held that special damages must not only be specifically pleaded, but also specifically proved.
Issues in the judgment
#Respondent referred to in places by the pronoun 'the' rather than a party name, and inconsistent internal dates in the claimant's evidence on first loss of voice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathambi v Safaricom Ltd (Cause 1986 of 2014) [2023] KEELRC 1772 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1772/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.