Stephen v Kenya Wildlife Service & another (Cause E462 of 2021) [2024] KEELRC 88 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant absconded or absented himself from duty
The Claimant did not desert but absented himself without authority, rendering no services for about two years
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.
Entitlement to salary and field allowances
No entitlement to salary not worked for; sums paid under the court order of 5th July 2021 would not be reversed
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.
Special damages of Kshs.97,000/=
Claim declined for failure to plead and specifically prove
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.
Compensation for the workplace injury
Claim for damages unavailable, being governed by WIBA, 2007
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.
Termination of employment
Neither the alleged past termination nor future termination was an issue properly before the court
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.
Legal principles established
#- 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
#- 1.Claim for special damages of Kshs.97,000/= declined
- 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.The Claimant's suit dismissed in its entirety
- 4.The 1st Respondent's Counter-claim for Kshs.590,033.10 dismissed
- 5.Each party to bear own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Work Injury Benefits Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.