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ELRCOtherMemorandum of Claim dated 3rd March 2014· [2016] KEELRC 142 (KLR)

Josephat Nyakeriga Asiago v Guardex Security Services Ltd [2016] KEELRC 142 (KLR)

Employment and Labour Relations Court
20 December 2016
LNLinnet Ndolo
554 words in judgment
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The bottom line

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If you are injured while on duty in Kenya, your employer must refer you for a work injury assessment, and courts can order that referral if the employer fails.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard from February 2013 at a claimed monthly salary of Kshs. 7,800, was injured on 3rd March 2013 when a water tanker hit the gate he was manning at Varsan Enterprises. He was admitted at PCEA Kikuyu Hospital until 12th November 2013 and incurred a bill of Kshs. 604,784, which he claimed from the Respondent together with salary for eleven months. The Respondent admitted the employment but denied the salary figure, contending that the Claimant's claim lay in tort against the tanker's owner, that its contract did not include an undertaking to pay medical bills, that employment ceased on health grounds on 3rd March 2013, and that the tanker owner's offer to pay the bills was rejected by the Claimant's family. The court held that the Claimant was on duty on the Respondent's assignment at the time of the accident, making the injury work-related and engaging the Respondent's legal duty to refer him to the Director for Occupational Safety and Health for assessment. The Respondent having failed to discharge that obligation, the court itself referred the Claimant for assessment and directed the Director to file a report in Court within sixty days. Ruling on the remaining heads of claim was withheld pending the report. Judgment delivered at Nairobi on 20th December 2016 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Respondent was obliged to refer the Claimant to the Director for Occupational Safety and Health

Holding

Yes. The injury occurred while the Claimant was on duty on the Respondent's assignment, making it work-related; the Respondent failed in its duty to refer, so the Court itself referred the Claimant for assessment.

Reasoning

The Respondent's defence was that a third party tanker caused the injury, but the court found it undisputed that the Claimant was on duty performing an assignment given by the Respondent at the time. That made the accident work-related, triggering the statutory referral obligation. Since the Respondent failed to discharge that obligation, the court stepped in and made the referral itself, deferring assessment of quantum to the Director.

p. 2

Legal principles established

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  • An injury to an employee while on duty on an assignment given by the employer is work-related, and the employer is under a legal duty to refer the employee to the Director for Occupational Safety and Health for assessment

Court orders

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  1. 1.The Court itself refers the Claimant for assessment by the Director for Occupational Safety and Health
  2. 2.The Director for Occupational Safety and Health to file his report in Court within sixty (60) days from the date of the judgment
  3. 3.Ruling on the other heads of the claim withheld pending receipt of the Director's report
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment injury claims; duty to refer injured employee to the Director for Occupational Safety and Health

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, "Josephat Nyakeriga Asiago v Guardex Security Services Ltd [2016] KEELRC 142 (KLR)", Case Analysis (2016). Memorandum of Claim dated 3rd March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/142/eng@2016-12-20

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