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ELRCDismissedCause No E462 of 2021· [2024] KEELRC 88 (KLR)

Stephen v Kenya Wildlife Service & another (Cause E462 of 2021) [2024] KEELRC 88 (KLR)

Employment and Labour Relations Court
31 January 2024
4,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a wildlife ranger who stayed off work for two years without notifying his employer wasn't paid, and workplace injuries must go through WIBA, not ordinary lawsuits.

What this practically means

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Executive summary

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The Claimant, a Ranger employed by the Kenya Wildlife Service from October 2015, sustained a back injury on 6th September 2017 at Nairobi National Park. He sued seeking field allowances from June 2019, salary from June 2020, special damages of Kshs.97,000/=, general damages, workmen's compensation and future medical expenses. The 1st Respondent (KWS) filed a counter-claim for Kshs.590,033.10 paid to the Claimant under an ex parte order of 5th July 2021, contending he absconded duty from 1st June 2019 and earned nothing. The 2nd Respondent (DOSHS) disclaimed any role, no claim having been lodged under WIBA. The court framed three issues: whether the Claimant absconded or absented himself, entitlement to reliefs, and the counter-claim. It found that although the Claimant was indisposed and held a 45% disability assessment, he never presented his sick sheets to the employer, who made reasonable attempts to trace him; he therefore absented himself without authority, though he did not desert. On entitlement, the court held wages are payable only for work done, but declined to reverse the sums paid under the interim order since KWS had not sought review and had ignored the initial hearing. Special damages failed for want of specific pleading and proof; injury-related damages were barred by the earlier ruling upholding WIBA's exclusivity. The counter-claim was dismissed and each party ordered to bear own costs. The judgment was delivered virtually at Nairobi on 31st January 2024 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the Claimant absconded or absented himself from duty

Holding

The Claimant did not desert but absented himself without authority, rendering no services for about two years

Reasoning

The court distinguished desertion (intention not to return) from unauthorised absence. None of the sick sheets bore the 1st Respondent's acknowledgement, the Claimant knew the notification process as a long-serving employee, and the 1st Respondent made reasonable attempts to trace him through a letter and radio messages. His absence was deliberate but not desertion.

p. 8
02

Entitlement to salary and field allowances

Holding

No entitlement to salary not worked for; sums paid under the court order of 5th July 2021 would not be reversed

Reasoning

Section 17(1) of the Employment Act provides wages are payable only for work done, and Section 19 permits recovery of erroneous payments. However, the Kshs.590,033.10 was paid pursuant to a court order obtained after the 1st Respondent failed to enter appearance or attend the hearing, and it never sought review. Equity therefore favoured leaving the orders intact.

p. 9
03

Special damages of Kshs.97,000/=

Holding

Claim declined for failure to plead and specifically prove

Reasoning

The written statement and testimony made no mention of the special damages claim. The 26 taxi receipts bore no driver's signature and were issued by the same person; the clinic receipts were never presented to the 1st Respondent for reimbursement. The Claimant also attached receipts predating his absence from duty.

p. 10
04

Compensation for the workplace injury

Holding

Claim for damages unavailable, being governed by WIBA, 2007

Reasoning

In a prior ruling of 28th September 2022 the court upheld a preliminary objection that its jurisdiction did not extend to compensation for the injuries sustained, as that falls under the Work Injury Benefits Act, 2007. The related prayers were therefore unsustainable and dismissed.

p. 10
05

Termination of employment

Holding

Neither the alleged past termination nor future termination was an issue properly before the court

Reasoning

No evidence of the alleged termination was adduced, no reliefs founded on termination were pleaded, and the question whether employment ought to be terminated did not arise at the hearing. The employer is better placed to determine retention or separation.

p. 9

Legal principles established

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  • An employer alleging desertion must show effort made towards reaching out to the employee and putting them on notice that termination is under consideration
  • Wages are payable only in respect of work done; salary paid erroneously for work not done is recoverable under Section 19 of the Employment Act
  • Special damages must be specifically pleaded and proved
  • Desertion is distinguishable from absence without leave by the employee's intention not to return

Court orders

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  1. 1.Claim for special damages of Kshs.97,000/= declined
  2. 2.Prayers for general damages for pain and suffering, loss of amenities and earning capacity, workmen's compensation and future medical expenses declared unsustainable and dismissed
  3. 3.The Claimant's suit dismissed in its entirety
  4. 4.The 1st Respondent's Counter-claim for Kshs.590,033.10 dismissed
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007Section 17(1)
  • Employment Act, 2007Section 19
  • Employment Act, 2007Section 30
  • Work Injury Benefits Act, 2007General
  • Wildlife Conservation and Management Act, 2013Schedule II
  • Persons With Disabilities Act, No. 14 of 2003Section 15
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Mwachupa Haranga Ndurya V Krystalline Salt Ltd
    (2019) eKLR
  • Gichuru V Package Insurance Brokers Ltd
    (2021) KESC 12 (KLR) 22
  • Julius Kyalo Malonza V Ruth Osolo t/a Eraeva Catering Services
    (2021) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • New World Stainless Steel Ltd V Cosmas Mbalu Munyasya
    (2021) eKLR
  • Ronald Nyambu Daudi V Tornado Carriers Ltd
    (2019) eKLR
  • Evans Ochieng Oluoch V Njimia Pharmaceuticals Ltd
    (2016) eKLR
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829
  • Hahn V Singh
    Civ. Appeal No. 42 of 1983 (185) KLR P 16
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Work Injury Benefits Act, 2007)

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, "Stephen v Kenya Wildlife Service & another (Cause E462 of 2021) [2024] KEELRC 88 (KLR)", Case Analysis (2024). Cause No E462 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/88/eng@2024-01-31

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