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ELRCPartially AllowedNot stated in judgment (Statement of Claim dated 10th October, 2020)· [2024] KEELRC 2820 (KLR)

Mbwika v Samrudha Resources Kenya Limited (Employment and Labour Relations Cause E086 of 2021) [2024] KEELRC 2820 (KLR)

Employment and Labour Relations Court
8 November 2024
1,918 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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Kenya's Employment Court ruled a worker's sacking was unfair and ordered compensation, medical costs, and a state assessment of his workplace injury.

What this practically means

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Executive summary

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The Claimant, employed on permanent terms at a monthly salary of Kshs.11,200/=, was injured on 29th February 2019 when a battery exploded at the Respondent's establishment, injuring his left eye (traumatic vitreous haemorrhage, choroidal rupture with macula scar and retinal detachment). He reported the accident to the Ministry of Labour, which issued the Respondent a letter and DOSH form requiring formal reporting under Section 21 of the Occupational Safety and Health Act; the Respondent never reported the accident. The Claimant was told to go home and was never recalled, never given notice, a show-cause letter or a disciplinary hearing, and was not issued a certificate of service. He sued seeking declarations of unfair termination contrary to Section 45 of the Employment Act and violation of Article 41(1) of the Constitution, compensation, damages, interest and costs. The Respondent did not enter appearance despite service. The court framed one issue: whether the claims were merited. Applying the burden-of-proof principle and the Mary Chemweno decision on valid reasons and hearing before termination, the court held the termination was unfair, awarding five months' salary (Kshs.56,000/=) as compensation. It found the constitutional violations unproved but directed that compensation for the injuries be assessed by the Directorate of Occupational Safety and Health services within 45 days, with proven medical expenses payable, costs to the Claimant, and interest at 14% per annum from judgment until full payment. Mention was set for 15th January 2025 to confirm settlement.

Key legal issues

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01

Whether the termination of the Claimant's employment was unfair and unlawful

Holding

Termination was unfair; the Respondent followed no due process and gave no valid reason, and was awarded the equivalent of five months' salary as compensation

Reasoning

The Respondent neither entered appearance nor filed a defence. The Claimant testified he was told to go home, received no notice, show-cause letter or disciplinary hearing, and was not issued a certificate of service. Relying on Mary Chemweno v Kenya Pipeline, the court held a valid reason touching on misconduct, poor performance or incapacity plus notice and a hearing is required before termination. None existed here, so the termination failed both the substantive and procedural fairness tests under Sections 41, 43 and 45 of the Employment Act.

p. 4
02

Whether the Respondent complied with Section 21 of the Occupational Safety and Health Act on reporting the workplace accident

Holding

The Respondent was required to report the accident but failed to do so

Reasoning

The Claimant suffered a work-related eye injury when a battery exploded on 29th February 2019. Section 21 of OSHA mandates employers to notify the area occupational safety and health officer of accidents within seven days. The Ministry of Labour even issued the Respondent a letter and DOSH form requiring formal reporting, yet it failed to report. The court treated this non-compliance as established and directed that compensation for the injuries be assessed by DOSH within 45 days.

p. 4
03

Whether the Claimant's constitutional rights under Article 41(1) were violated

Holding

The constitutional violations were not proved

Reasoning

Although the Claimant sought declarations that the termination violated Article 41(1) and entitlement to compensation under Article 23(3), the court found the constitutional violations were not proved on the evidence. It nonetheless granted compensation for the injuries through the DOSH assessment route rather than a constitutional award, showing the statutory unfair-termination and occupational-safety framework adequately addressed the loss.

p. 5

Legal principles established

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  • An employer must have valid reasons for termination and afford the employee notice and a hearing before sanction
  • Whoever alleges must prove, per Sections 107 and 108 of the Evidence Act
  • Employers must notify the area occupational safety and health officer of workplace accidents within the statutory period

Court orders

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  1. 1.Claimant awarded five (5) months' salary equivalent, Kshs.56,000/=, as compensation for unfair termination
  2. 2.Compensation for injuries suffered to be determined by the Directorate of Occupational Safety and Health services within forty-five (45) days
  3. 3.Proven medical expenses to be paid
  4. 4.Costs to be paid to the Claimant
  5. 5.Interest on all the above at 14% per annum from date of judgment till full payment
  6. 6.Mention on 15th January 2025 to confirm full settlement after directions of the Director of Occupational Safety and Health

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1); Article 23(3); Article 159(2)(d); Article 48
  • Employment ActSections 41(1), 43(1) & 2, 45(1)-(4)
  • Occupational Safety and Health Act (OSHA)Section 21
  • Evidence Act, Chapter 80 Laws of KenyaSections 107 and 108
  • Civil Procedure Act (Chapter 21)Section 27; Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Job Onyikwa V Expressions Flora Limited
    [2015] eKLR
  • Elizabeth Kioko V Beyene Haire Warde & another
    [2018] eKLR
  • Boniface Ndwiga Mbogo V Jamleck Mwaniki
    [2016] eKLR
  • Peter Muriuki Ngure V Equity Bank (K) Ltd
    [2018] eKLR
  • Rift Valley Railways (K) Limited V Kiya Kalakhe Boru
    [2015] KECA 900 (KLR)
  • Mary Chemweno V Kenya Pipeline Company Limited
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Occupational Safety and Health Act (specific enabling provision not cited in the judgment)

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, "Mbwika v Samrudha Resources Kenya Limited (Employment and Labour Relations Cause E086 of 2021) [2024] KEELRC 2820 (KLR)", Case Analysis (2024). Not stated in judgment (Statement of Claim dated 10th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2820/eng@2024-11-08

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