Wambugu v H. Young & Co. East Africa Ltd

3. It is the Petitioner’s further assertion that, on 21st April 2016, the County Occupational Safety Ocer, Nyeri County, wrote to the Respondent requiring it to complete the prescribed DOSH Part I form to enable the said ocer to process the Petitioner’s award under the Work Injury Benefits Act. 4. The Petitioner contends that, to date, the Respondent has failed to comply with the directive of the County Occupational Safety Ocer and has declined to grant him an audience. 5. According to the Petitioner, the Respondent has subjected him to discriminatory treatment by failing to report the work-related injury to the Director of Occupational Safety and Health (Director), failing to complete the prescribed DOSH form, and refusing to facilitate his treatment. 6. The Petitioner further contends that the Respondent’s actions constitute blatant violations of his constitutional rights and, to that end, seeks the following orders: a. A declaration that the Petitioner was unfairly discriminated against on his employment status on account of his medical status upon sustaining a work injury. b. A declaration that the Petitioner was subjected to unfair labour practices contrary to the provisions of: i. Article 27 of the Constitution, which provides that every person is equal before the law and has the right to equal protection and equal benet of the law. ii. Article 28 of the Constitution, guaranteeing every person the right to inherent dignity, which must be respected and protected at all times. iii. Article 41 of the Constitution guarantees every worker the right to fair labour practices, including the observance of the provisions of the Work Injury Benefits Act, 2007. c. A declaration that the actions of the Respondent were in violation of the Constitution of Kenya, 2010. d. A declaration that the Respondent violated the Petitioner’s right to compensation under the work injury compensation framework of the Work Injury Benefits Act, 2007. e. An order compelling the Respondent to pay the Petitioner general or exemplary damages for being subjected to workplace discrimination on employment status on account of a workplace injury/ailment and/or his resultant medical condition. f. An order compelling the Respondent to subject the Petitioner to the compensatory process under the framework of the Work Injury Benefits Act pursuant to the work injury as sustained by the Petitioner within 30 days from the Respondent an award for compensation for the work-related injury equivalent to 96 months from the date of this Court’s judgment. g. In the alternative, this Honourable Court be pleased to award the Petitioner against the Respondent an award for compensation for the work-related injury equivalent to 96 months' pay for 100% permanent disability being a sum of Kshs 3,224,928.00 calculated at gross monthly pay of Kshs 33,595.00 by 96 months, as per the provisions of the Work Injury Benefits Act, 2007. h. An order compelling the Respondent to pay the Petitioner the costs of the suit. i. Any such other orders, reliefs and/or deductions that this Honourable Court may deem just and t to grant the exigencies of justice and requirements of the Constitution, 2010. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 2

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7. Upon being served with the Petition, the Respondent led a Notice of Preliminary Objection dated 26th September 2024, which was overruled by the Court in a Ruling delivered on 16th May 2025. 8. The Respondent did not le a substantive response to the Petition, notwithstanding that it had been granted 30 days’ leave, on 13th May 2026, within which to do so. Submissions 9. On 13th May 2026, the Court directed that the Petition be canvassed by way of written submissions. Only the Petitioner led written submissions. At the time of writing this Judgment, the Respondent’s submissions were not traceable either on the online ling portal or in the physical court record. This was notwithstanding that the Respondent had been granted seven (7) days, on 14th July 2026, within which to le its written submissions. 10. On behalf of the Petitioner, it was submitted that the Respondent’s refusal to cooperate has had devastating consequences for the Petitioner, and that the statutory timeframes under the Work Injury Benefits Act have since lapsed. It was further submitted that the Respondent’s inaction has eectively barred the Petitioner from pursuing his claim through the ordinary administrative process. 11. The Petitioner further submitted that the Respondent discriminated against him on account of his health status and disability. In this regard, the Petitioner submitted that barely a month after the accident, the Respondent terminated his employment without oering him alternative employment or making any attempt to accommodate him. The Petitioner contended that this amounted to a clear violation of Article 27 of the Constitution. 12. It was the Petitioner’s further submission that the Respondent’s conduct was an aront to his inherent dignity. It was contended that the Respondent’s refusal to report the accident to the Director, facilitate the Petitioner’s treatment, or grant him an audience, despite being aware that he had been rendered totally incapacitated while in its service, constituted a violation of Article 28 of the Constitution. The Petitioner asserted that, in the circumstances, the Respondent treated him not as a human being deserving of dignity, but as a disposable asset. 13. Relying on the decision in Kurui v Aquila Development Company Ltd (2024) KEELRC 658 (KLR), the Petitioner further submitted that fair labour practices encompass compliance with the provisions of the Work Injury Benefits Act. In the same vein, it was submitted by the Petitioner that an employer who violates the statutory rights of an employee, including the right to compensation for work-related injuries, thereby violates Article 41 of the Constitution. Analysis and Determination 14. Having considered the Petition as well as the submissions by the Petitioner, the Court nds that the twin issues for determination are whether the Petitioner’s constitutional rights have been violated and whether he is entitled to the reliefs sought. 15. It is not in dispute that the Petitioner sustained a work-related injury on 16th August 2014. According to the Petitioner, the injuries sustained included a complete spinal injury, resulting in total paralysis. 16. The Petitioner’s case is that the Respondent failed to report the accident and to complete DOSH Form 1 to facilitate further action by the Director of Occupational Safety and Health (Director) in the determination of his claim under the Work Injury Benefits Act. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 3

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17. In support of his case, the Petitioner produced a letter dated 21st April 2016 from the County Occupational Safety and Health Ocer, Nyeri, forwarding the prescribed DOSH Form 1 to the Respondent and requiring the Respondent to complete the same. 18. Since the Respondent did not le a substantive response to the Petition, it did not controvert the Petitioner’s assertion that it neither formally reported the accident nor completed DOSH Form 1 to facilitate further action by the Director. 19. Section 22(1) of the Work Injury Benefits Act requires an employer to report an accident to the Director, in the prescribed manner, within seven (7) days of receiving notice of the accident or otherwise learning that an employee has been injured. 20. Essentially, by failing to report the Petitioner’s work-related accident to the Director and to complete DOSH Form 1, the Respondent failed to discharge its statutory obligation under Section 22(1) of the Work Injury Benefits Act. 21. This omission by the Respondent had a consequential eect, as it impeded the Petitioner’s ability to pursue and obtain compensation under Section 10(1) of the Work Injury Benefits Act. 22. In light of the foregoing, the pertinent question for determination by this Court is whether the Respondent’s omission amounted to a violation of the Petitioner’s constitutional rights. In answering this question, it is necessary to consider the constitutional provisions alleged to have been violated and examine them against the facts and circumstances of the present case. 23. Article 41(1) of the Constitution guarantees every person the right to fair labour practices. The scope of the right to fair labour practices under Article 41 was considered by the Court in Peter Wambugu Kariuki & 16 Others v Kenya Agricultural Research Institute [2013] KEELRC 373 (KLR), thus: “ What is this right to fair labour practices? First, it is the opinion of the court that the bundle of elements of “fair labour practices” is elaborated in article 41(2), (3), (4) and (5) of the Constitution……..These constitutional provisions constitute the foundational contents of the right to fair labour practices………… Secondly, it is the opinion of the court that the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established work place conventions or usages that give eect to the elaborations set out in article 41 or promote and protect fairness at work. These include provisions for basic fair treatment of employees, procedures for collective representation at work, and of late, policies that enhance family life while making it easier for men, women and persons with disabilities to go to work.” 24. As regards the meaning of an unfair labour practice, Black’s Law Dictionary, 9th Edition, at page 1667, denes the term as follows: “ Any conduct prohibited by state or federal law governing the relations among employers, employees, and labour organisations. Examples of unfair labour practices by an employer include (1) interfering with protected employee rights, such as the right to self-organization, (2) discriminating against employees for union related activities, (3) retaliating against employees who have invoked their rights, and (4) refusing to engage in collective bargaining.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 4

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25. The Supreme Court of Kenya, in Kenya Ports Authority v Munyao & 4 Others [2023] KESC 112 (KLR), considered the scope of unfair labour practices under Article 41 of the Constitution and held as follows: “ From the above denition, unfair labour practice encompasses all conduct prior to, in the course of employment, during and after termination of employment. The provisions of article 41 therefore encompass the full spectrum of labour practices. The provisions of article 41 are borne from the realization that employment and/or right to work is a human right. The right is also linked to other rights in the bill of rights more so the protection of life and the dignity of a person. The right is therefore a principle with legal obligations.” 26. What can be drawn from the foregoing authorities is that an unfair labour practice may arise from an act or omission, or a workplace condition, that undermines the right to fair labour practices guaranteed under Article 41 of the Constitution, the relevant statutory framework, including the Employment Act, the Labour Institutions Act, the Labour Relations Act, Occupational Safety and Health Act and the Work Injury Benefits Act, and established workplace conventions. 27. Such unfair labour practices may include unilateral variation of employment terms, workplace discrimination, interference with trade union rights, unfair termination or constructive dismissal, arbitrary deductions from or delays in payment of wages, payment of remuneration below the prescribed minimum wage, retaliatory conduct, and failure to comply with statutory obligations governing the employment relationship. 28. It is evident from the circumstances of this case that the Respondent’s failure to discharge its statutory obligation under Section 22(1) of the Work Injury Benefits Act, by failing to report the Petitioner’s work-related accident to the Director and to complete the prescribed DOSH Form 1, had a direct and consequential eect on the Petitioner’s ability to pursue his right to compensation arising from the work-related injury. 29. The Respondent’s omission was therefore not merely a procedural breach. The uncontroverted evidence demonstrates that the Petitioner sustained a serious work-related injury which resulted in total paralysis and incapacity. Given that the Petitioner’s injury arose from a work-related accident, the Respondent’s subsequent failure to discharge its statutory obligations impeded the process through which the Petitioner could pursue compensation for the consequences of the injury. 30. In particular, by failing to report the accident and complete the prescribed DOSH Form 1 despite being aware of the Petitioner’s injury, the Respondent failed to comply with statutory provisions intended to protect the Petitioner. Consequently, the statutory compensation process was impeded and could not proceed as contemplated under the Work Injury Benefits Act. 31. Dierently expressed, the Respondent’s omission materially impeded, and eectively deprived, the Petitioner of the right to access the statutory compensation under the Work Injury Benefits Act. 32. The Court therefore nds a sucient causal nexus between the Respondent’s omission and the prejudice suered by the Petitioner in pursuing his statutory right to compensation under the Work Injury Benefits Act. 33. Having regard to the passage of time and the enduring consequences of the injury, including the Petitioner’s need for round-the-clock assistance with basic daily functions, the Court nds that the Respondent’s conduct went beyond a mere statutory infraction and violated the Petitioner’s right to fair labour practices guaranteed under Article 41 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 5

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34. Turning to the alleged violation of Articles 27 and 28 of the Constitution, the Court concurs with the nding of the Apex Court in Kenya Ports Authority v Munyao & 4 Others (supra) that the right to fair labour practices is linked to other rights guaranteed under the Bill of Rights, particularly the protection of life and the dignity of the person. 35. This Court further observes that in the present case, the violation of the Petitioner’s right to fair labour practices also extended to a violation of his right to equality and right to equal protection and equal benet of the law. 36. Accordingly, the Court nds that, by subjecting the Petitioner to unfair labour practices, the Respondent also violated the Petitioner’s rights to equality, equal protection and equal benet of the law, as well as his right to have his dignity respected and protected. 37. The foregoing nding is further reinforced by the Respondent’s conduct in terminating the Petitioner’s employment following the severe work-related injuries he had sustained, while at the same time failing, without justication, to take the necessary steps to facilitate the processing and determination of his claim for compensation under the Work Injury Benefits Act. By failing to discharge its statutory obligations under the Act, the Respondent aggravated the Petitioner’s predicament. Reliefs? 38. In view of the foregoing, the Court nds that the Petitioner has established entitlement to some of the reliefs sought, namely, a declaration that the Respondent violated his right to fair labour practices guaranteed under Article 41 of the Constitution. The Court further nds that, in so doing, the Respondent violated the Petitioner’s right to equality and to equal protection and equal benet of the law, as guaranteed under Article 27(1) of the Constitution, as well as his right to have his dignity respected and protected under Article 28 of the Constitution. 39. Accordingly, the Court nds that the Petitioner is entitled to an award of general damages for the violation of his constitutional rights. 40. In Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others [2026] KESC 54 (KLR), the Supreme Court held that an award of general damages for violation of constitutional rights is discretionary. The Court further observed that the exercise of that discretion ought to be guided by various factors, including the nature of the breach complained of, the impact of the violation and its broader implications, among other relevant considerations. 41. Therefore, in determining the appropriate quantum, the Court is required to consider the circumstances of the particular case and the extent to which the violation aected the Petitioner, while bearing in mind the need for an award that is fair and proportionate to the infringement established. 42. In Francis Ochieng Oiro v Nairobi City County Government [2020] KEELRC 248 (KLR), the Court awarded the Petitioner general damages in the sum of Kshs.1,000,000.00, having found that his constitutional rights under Articles 27, 41, 47 and 50 of the Constitution had been violated. 43. Further, in Kinyanjui v Scania East Africa Limited [2026] KEELRC 1654 (KLR), the Court awarded the Petitioner damages in the sum of Kshs.2,000,000.00 for violation of her constitutional rights guaranteed under Articles 41 and 47 of the Constitution. 44. Drawing guidance from the foregoing authorities, and taking into account the nature and impact of the violation of the Petitioner’s constitutional rights by the Respondents, the Court nds that an award of Kshs.3,000,000.00 by way of general damages is reasonable and sucient in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 6

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45. The Court further nds that the Respondent is under a statutory obligation to complete the prescribed DOSH Form 1 and submit the same to the Director for further action in accordance with the Work Injury Benefits Act. Orders 46. In sum, the Court nds that the Petition is merited and hereby issues the following declarations and orders: a. A declaration is hereby issued that the Respondent violated the Petitioner’s right to fair labour practices guaranteed under Article 41 of the Constitution, the right to equality and to equal protection and equal benet of the law, as guaranteed under Article 27(1) of the Constitution, as well as his right to have his dignity respected and protected under Article 28 of the Constitution. b. Consequently, the Respondent shall pay the Petitioner general damages in the sum of Kshs. 3,000,000.00 (Kshs. 3 million) on account of the violation of his constitutional rights. Interest shall accrue at court rates from the date of this Judgment until payment in full. c. The Respondent is hereby directed to complete the prescribed DOSH Form 1 in respect of the work-related injury sustained by the Petitioner within seven (7) days from the date hereof and to submit the completed form to the Director for further action in accordance with the Work Injury Benefits Act. d. The Respondent shall bear the costs of the Petition. DATED, SIGNED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: Mr. Guyo for the Petitioner Mr. Kimathi for the Respondent Ndati Court Assistant Order In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2648/eng@2026-09-25 7

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