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ELRCPartially AllowedELRC Cause (Nairobi) — Memorandum of Claim filed 17th May 2017· [2023] KEELRC 3091 (KLR)

Wahome v Lupran Manpower and HRM Services & another (Cause 924 of 2017) [2023] KEELRC 3091 (KLR)

Employment and Labour Relations Court
30 November 2023
JGJacob Gakeri
2,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan worker injured in a fall at work won Kshs 750,000 from his employer, Basco Products Ltd, after proving his employment even though the company never showed up in court.

What this practically means

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Executive summary

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The Claimant, a goods lifter, sued for compensation for a workplace accident on 11th August 2016 in which he fell from the first floor to the ground floor at the 2nd Respondent's Head Office, fracturing the T12 vertebra and causing a 20% partial disability and 42 days' absence from work. He sought a declaration that the Respondents' actions were unfair, salary arrears of Kshs.26,280, medical expenses of Kshs.70,532, compensation for total disablement, costs and interest, anchoring quantum on Section 28(3) and comparable awards. The 1st Respondent denied the claim; the 2nd Respondent (Basco Products Ltd) did not defend the suit. The court framed two issues: the identity of the employer and entitlement to relief. On the evidence — a confirmation letter to Nairobi West Hospital, a sick-off sheet, and an invoice forwarded to the 2nd Respondent — it found the Claimant was the 2nd Respondent's employee at the date of the accident, and that no employment relationship with the 1st Respondent was proved, only three unexplained payslips connecting them. Applying the direction in Gazette Notice No. 5476 of 2023, the court found it had jurisdiction over the WIBA claim. The declaration, salary arrears and medical expenses prayers were declined or dismissed (the latter two having been paid), but judgment was entered against the 2nd Respondent for Kshs.750,000/= with costs and interest, by analogy with comparable disability awards.

Key legal issues

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01

Identity of the claimant's employer

Holding

The Claimant was an employee of the 2nd Respondent (Basco Products Ltd) at the date of the accident; no employment relationship with the 1st Respondent was established.

Reasoning

A letter from the 2nd Respondent to Nairobi West Hospital confirming the Claimant was injured at work, a sick-off sheet, and an invoice forwarded to the 2nd Respondent for settlement, together with the Claimant's cross-examination admissions, established employment by the 2nd Respondent. The only documents connecting the Claimant to the 1st Respondent were three payslips, unexplained by evidence of the relationship between the two companies.

p. 4
02

Entitlement to compensation for workplace injury in an undefended suit

Holding

The Claimant proved his claim on a balance of probabilities and was awarded Kshs.750,000/= for partial disability (20%) arising from a workplace fall.

Reasoning

The 2nd Respondent did not defend the suit, and in undefended suits the claimant must establish all facts including employment, which was done. Guided by the medical reports (wedge compression fracture of T12, 20% disability) and comparable awards in Charles Kimunya and Abdi Haji Gulleid, the court found Kshs.750,000/= fair given that the Claimant's back pain would reduce over time and he had neither intra-abdominal injuries nor spondylosis.

p. 6

Legal principles established

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  • In undefended suits, the claimant must establish all the facts of the claim, including the fact of employment.
  • Assessment of quantum of damages is a matter of judicial discretion exercised with regard to prevailing conditions and comparable prior decisions.

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the 2nd Respondent for Kshs.750,000/= for total disablement
  2. 2.Costs of the suit against the 2nd Respondent
  3. 3.Interest at court rates from the date of judgment till payment in full
  4. 4.Prayer for declaration that the Respondents' actions were unfair declined
  5. 5.Prayer for salary arrears of Kshs.26,280.00 dismissed
  6. 6.Prayer for medical expenses of Kshs.70,532/= dismissed

Authorities

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Legislation

  • Section 28(3) of an unnamed statute (on assessment of damages for permanent disablement)Section 28(3)
  • Gazette Notice No. 5476 of 28th April 2023 (Directions on WIBA claims)Direction No. 7
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Samuel Otieno Musumba v Industrial and Commercial Development Corporation & another
    (2022) eKLR
  • Collince Odiwuor Obondo v Lexis International Ltd
    ELRC No. 596 of 2016
  • Humphrey Munyithya Mutemi v Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Nicholus Kipkemoi Korir v Hatari Security Services Ltd
    (2016) eKLR
  • Southern Engineering Co. Ltd v Musingi Mutia
    (1985) KLR 730
  • Charles Kimunya & Daniel Ndung’u Gitau v Rose Mueni Maina
    (2019) eKLR
  • Abdi Haji Gulleid v Auto Selection Ltd & another
    (2015) eKLR
Jurisdiction invoked
Direction No. 7 of Gazette Notice No. 5476 of 28th April 2023 on WIBA claims (claims filed after commencement of WIBA and before the Supreme Court decision to proceed before ELRC or Magistrates' Courts)

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, "Wahome v Lupran Manpower and HRM Services & another (Cause 924 of 2017) [2023] KEELRC 3091 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi) — Memorandum of Claim filed 17th May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3091/eng@2023-11-30

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