https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1677

Lock (Suing as a personal representative of Jackline Khayeche Burundi - Deceased) v ICS Africa (Cause E1016 of 2024) [2026] KEELRC 1677 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1677 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E1016 of 2024 CN Baari, J June 19, 2026 Between Khothot Tukiko Lock (Suing as a personal representative of Jackline Khayeche Burundi - Deceased) Claimant and Ics Africa Respondent Judgment 1.In a Statement of Claim dated 27th November, 2024, the Claimant sued the Respondent, seeking the following reliefs:i.A declaration for breach of employment contractii.Compensation for failure to register the deceased for Group Life Insurance as required under the HR Manual, leading to undue financial and emotional hardship for her familyiii.A declaration that the ‘full and final payment' acknowledgment signed by the claimant is invalid and unenforceable, as it was executed without discussion or disclosure of the deceased's entitlement to Group Life Insurance. The acknowledgment cannot preclude claims for benefits omitted due to the respondent's failure to fulfill its obligations under the HR Manualiv.General damagesv.Costs of the Suit 2.The Respondent filed a Memorandum of Response dated 17th December, 2024, denying the Claimant’s claim and further contending that it paid the Claimant all the monies due to her and that the claim is bereft of any legal or factual backing. Subsequent thereto, the Claimant filed a Reply to Defence dated 4th February, 2025. 3.The Claimant’s case was heard on 10th June, 2025, when Mr. Khothot Lock, the Claimant, testified in support of his case, adopted his witness statement dated 27th November, 2024, and produced the list and bundle of documents filed as exhibits in the matter. 4.The Respondent’s case was thereafter heard on 8th December, 2025, when one Dennis Chirchir testified in support of the Respondent’s case. Dennis adopted his witness statement dated 17th December, 2024, and produced the Respondent’s list and bundle of documents as exhibits in the matter. 5.Submissions were received from the Claimant and have been duly considered. The Claimant’s Case 6.The Claimant’s case is that he is acting as the legal representative of his deceased wife’s estate pursuant to a grant ad litem, and has instituted a claim against the Respondent alleging breach of the employment contract and discrimination against the deceased during her employment. He avers that the claim herein is therefore pursued on behalf of the deceased's estate and beneficiaries. 7.The Claimant states that the deceased was employed by the Respondent as a Project Coordinator, VAC under an employment agreement in force at the time of her death. He avers that on 20th September 2021, she executed a Letter of Offer, which constituted her contract of employment with the Respondent, and that in reliance on that offer, she resigned from her previous employment with I Choose Life – Africa and subsequently reported to her new position at ICS-Africa on 18th October 2021, where she faithfully discharged her duties until her untimely demise on 2nd December 2021. 8.It is his case that, in addition to the Letter of Offer, the ICS Africa (Kenya) Staff Rules and Regulations Manual formed an integral part of the employment relationship and governed various terms and conditions of service, including employee benefits such as Group Life Insurance. He further avers that the availability of these benefits was a significant consideration influencing the deceased's decision to leave her previous employment and join ICS-Africa. 9.The Claimant states that the deceased’s contract provided for the following employment benefits: a consolidated monthly salary of KES 140,000, subject to statutory deductions, pension benefits, medical cover, accrued annual leave at the rate of two days per month, a monthly airtime allowance of KES 2,000, and severance pay equivalent to 50% of one month's salary for each completed year of service. 10.The Claimant contends that upon executing the Letter of offer, the deceased became immediately entitled to the employment benefits stipulated in her contract and the Respondent's staff policies. It is his position that it was incumbent upon the Respondent to ensure that the deceased was duly enrolled and captured within its employment and benefits systems so that she could access and enjoy those benefits. 11.The Claimant further avers that the deceased had a legitimate and reasonable expectation that she and her family would benefit from the employment benefits available to staff members, including those provided under the Respondent’s policies, by virtue of her status as an employee. Accordingly, the Respondent had a corresponding obligation to take all necessary administrative steps to facilitate her participation in such benefit schemes. 12.The Claimant contends that he and the two children of the deceased, as her dependents, were entitled to benefit from the medical and group life insurance schemes provided under the Respondent’s Staff Rules and Regulations Manual. He avers that the Manual provided that all employees would be covered by group life and accident insurance from the commencement of employment, while the medical scheme extended coverage to an employee’s spouse and dependent children. 13.The Claimant asserts that the deceased’s family ought to have been enrolled as beneficiaries under these schemes and, therefore, entitled to the corresponding insurance benefits. 14.It is the Claimant’s case that on 2nd December 2021, the deceased fell ill while on duty and was admitted to the ICU at Diani Beach Hospital suffering from severe acute hypoxia secondary to massive aspiration. 15.The Claimant’s further case is that the Respondent breached the deceased’s employment contract by failing to enroll her in the promised medical and group life insurance schemes, despite these benefits being a key inducement for her to accept employment. He further contends that the deceased’s demanding work conditions, coupled with family pressures and the absence of insurance coverage, contributed to the medical condition that led to her death. 16.The Claimant maintains that the deceased was not covered by the relevant insurance schemes at the time of her death and that the subsequent issuance of medical insurance cards after her demise demonstrated the Respondent’s failure to provide the promised benefits during her employment. 17.The Claimant states that the Respondent only enrolled the deceased in its medical insurance scheme after her death, enabling payment of her medical, mortuary, and last-expense costs. He contends that the deceased was never enrolled in the mandatory Group Life Insurance scheme during her lifetime. 18.The Claimant further avers that although the Respondent paid KES 396,455 and presented it as a full and final settlement, the payment did not include any Group Life Insurance benefits due to the deceased’s estate and dependents. He maintains that this omission was neither disclosed nor explained. 19.According to the Claimant, the Respondent’s failure to enroll the deceased in the medical and group life insurance schemes constituted a breach of the employment contract, caused financial prejudice to her surviving family, and amounted to discrimination contrary to Article 27 of the Constitution of Kenya. 20.The Claimant avers that the Respondent acted in bad faith by presenting a "full and final payment" settlement while omitting any reference to the deceased’s entitlement to Group Life Insurance benefits under the employment policies. According to the Claimant, the settlement misrepresented the extent of the deceased’s entitlements and excluded a significant benefit due to her estate and dependants. 21.The Claimant further contends that the provision of a posthumous medical insurance cover for only ten days after the deceased’s death was inadequate and intended to conceal the Respondent’s earlier failure to enroll her in the applicable insurance schemes. 22.It is his position that the Respondent’s actions caused the Claimant and his family financial and emotional hardship by depriving them of the financial security that would have been provided through the Group Life Insurance benefit, particularly for the support of the deceased’s children and other dependants following her death. 23.The Claimant reiterates that the Respondent failed to provide the deceased with Group Life Insurance cover during her employment, notwithstanding the express provisions of the Human Resource Manual, which expressly required that all employees be covered under a Group Life Insurance and 24-hour accident insurance scheme from the commencement of their employment. 24.The Claimant therefore maintains that the Respondent’s failure to enroll the deceased in the Group Life Insurance scheme constituted a breach of her employment contract and a failure to comply with its own internal policies and procedures. 25.On cross-examination, the Claimant confirmed that he received the final dues payment of his deceased wife from the Respondent, and that he raised the issue of discrepancies on the payment receipt. 26.The Claimant confirmed that he requested a meeting with the Respondent in respect of his deceased wife’s Group life benefits and that the meeting was held. 27.It is his testimony that the amount paid did not cover the group life benefits and that what he now seeks is not the amount paid but payment on account of the group life policy. 28.The Claimant avers that he attempted to report the incident to the Director of Occupational Safety and Health, but he was advised that the employer was the only one who could make such a report. 29.The Claimant prays that his claim be allowed. The Respondent’s Case 30.The Respondent states that it is a non-profit organization dedicated to child and family development in Africa, with a mission of supporting parents, caregivers, and other stakeholders to provide safe and nurturing environments for children. It avers that it does not dispute the background facts concerning the deceased’s employment but denies the allegations of breach of contract and discrimination. It maintains that it complied with its employment obligations and did not treat the deceased unfairly. 31.The Respondent further avers that it was the organization's established practice to enroll employees in the medical insurance scheme only after successful completion of their probation period. According to the Respondent, the deceased was informed of this practice during her induction and was therefore aware, at the time she accepted and signed the offer letter, that medical cover would become available upon completion of probation. Accordingly, the Respondent contends that the deceased had knowledge of and accepted these terms of employment. 32.The Respondent denies liability and maintains that the deceased was aware that medical insurance cover was only available after successful completion of probation. It asserts that she had even requested early enrolment, demonstrating her knowledge of the policy. 33.The Respondent further contends that it complied with its obligations under Section 34 of the Employment Act by providing reasonable medical assistance and facilitating medical cover. It argues that no medical claim had been made by the deceased before her death. 34.The Respondent further states that it characterizes the claim as an attempt to create posthumous contractual entitlements that did not exist during the deceased’s employment, arguing that the Claimant is only entitled to pursue benefits and remuneration that had accrued to the deceased at the time of her death. 35.The Respondent denies ever providing a Group Life Insurance scheme to its employees and contends that the Claimant’s claim is based on a non-existent benefit. The Respondent further states that employees, including the deceased, were covered under a WIBA Plus Group Personal Accident (GPA) Cover obtained from ICEA Lion. It avers further that the deceased was enrolled in this cover from the date she commenced employment on 18th October 2021, and that the policy was intended to provide compensation for work-related injury, disability, or death and was maintained in compliance with the Work Injury Benefits Act (WIBA). 36.The Respondent further avers that a claim was lodged under the policy following the deceased’s death, but which claim was rejected by the insurer because her death was not accident-related. Consequently, the Respondent maintains that there is no contractual or legal basis for compensation under the alleged Group Life Insurance cover. 37.The Respondent acknowledges that the deceased was not enrolled in the medical insurance scheme when she fell ill on 2nd December 2021 because she was still serving her probation period. It maintains, however, that it acted promptly by arranging her treatment at Diani Beach Hospital and ensuring that all medical expenses were settled. 38.The Respondent states that the deceased's medical bill of Kshs. 107,160 was ultimately paid through its medical insurer, Jubilee Insurance. It further asserts that it met additional expenses related to the deceased's death, including Kshs. 42,000 for transportation of the body to Nairobi and Kshs. 28,000 for police escort services. Additionally, the Respondent avers that its staff mobilized Kshs. 76,202 to support the family with burial arrangements, part of which was remitted to the funeral committee, and the balance was provided directly to the Claimant. The Respondent states that it relies on these actions as evidence that it provided substantial support and fulfilled its obligations following the deceased's illness and death. 39.The Respondent asserts that it fully settled all benefits due to the deceased's estate, including salary, service pay, accrued leave, a death benefit under its Staff Manual, and a last-expense insurance benefit, all totaling Kshs. 616,363.64. It therefore maintains that the Claimant has already received all lawful entitlements arising from the deceased's employment and that no further compensation is payable. 40.The Respondent denies all allegations of misrepresentation concerning the Claimant’s final settlement and maintains that the payments made were lawful, complete, and properly disclosed. 41.It further contends that the Claimant is not entitled to any of the declarations, orders, or additional benefits sought in the claim and urges the Court to dismiss the suit for lack of merit. 42.On cross-examination, RW1 testified that the Respondent’s Human Resources Manual insures staff against death and that insurance takes effect from the date employment commences. He further confirmed that Group Life and accident disability cover all employees, but in practice, the Respondent uses only Group Accident Cover. 43.RW1 confirmed that the Claimant’s wife/employee died in the course of duty and that an equivalent of her 3 months’ basic salary was paid to the Claimant, which figure, he argued, was computed per the Respondent’s HR manual. 44.It is his testimony that the group Life Cover provided under the HR Manual is not operational, and all the Respondent has in place is a personal accident cover. 45.RW1 states that although the incident was reported under WIBA, the insurance declined the claim on the assertion that the deceased's death was not accidental per the report of the postmortem. 46.The Respondent prays that the Claimant’s Claim be dismissed with costs. Analysis and Determination 47.The issues that fall for determination are:i.Whether the Respondent breached the deceased's contract of employment by failing to provide Group Life Insurance and medical insurance cover.ii.Whether the Respondent discriminated against the deceased contrary to Article 27 of the Constitution.iii.Whether the Claimant is entitled to the reliefs sought Whether the Respondent breached the deceased's contract of employment by failing to provide Group Life Insurance and medical insurance cover 48.It is not disputed that the employment contract between the deceased employee and the Respondent comprised not only the letter of offer of employment, but also the employer's policies and staff manual, which were incorporated into the employment relationship. 49.The Court of Appeal in Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] KECA 194 (KLR), affirmed that staff manuals and human resource policies may form part of the employment contract where incorporated into the terms of employment. 50.The Claimant‘s position is that Article 3.13 of the Staff Rules and Regulations Manual provides that all employees shall be covered under a group life insurance and 24-hour accident insurance from the date their employment commences. 51.A glance at the Respondent’s staff Manual, which was produced in evidence, indeed provides, in Article 3.13 subarticle 2, that all its employees shall be covered under a group life insurance and 24 hour accident cover. It further states that employees shall be entitled to this insurance from the date their employment commences. 52.The existence of the Group Life Insurance benefit under the Respondent Staff Manual is therefore uncontested. It is also not disputed that the said Manual formed part of the deceased employee’s contract. 53.In my considered view, the Respondent’s confirmation through their witness (RW1) that no Group Life Insurance policy ever existed constitutes failure on its part to implement the policy. Further, its assertion that employees were instead covered under a WIBA Plus Group Personal Accident policy cannot in any way take away a benefit that had already crystallized. 54.This Court has consistently held that employers are bound by their own policies and procedures, and the Respondent's contention that such a cover never existed no doubt points to non-compliance with its own policies. 55.On the issue of medical insurance, the Respondent asserts that medical insurance was available only after completion of probation and that this was an established practice known to the deceased. The evidence reveals that the deceased died less than two months after reporting to work on 18th October 2021 and before confirmation. 56.The deceased's letter of offer, however, expressly promised medical cover without qualifying that entitlement by probation, as alleged by the Respondent. Section 10 of the Employment Act requires employers to communicate the material terms and conditions of employment, and reliance on an unwritten practice cannot, in my view, suffice. 57.In the final analysis, I conclude that the Respondent never complied with the Staff Manual as read with the deceased employee’s contract, and was thus in breach of the deceased employee’s contract of employment.Whether the Respondent discriminated against the deceased contrary to Article 27 of the Constitution 58.The Claimant invokes Article 27 of the Constitution to argue that his deceased wife was discriminated against. 59.The legal test for discrimination was settled by the Supreme Court in Law Society of Kenya v Attorney General & 4 Others [2023] KESC 19 (KLR), and by the Court of Appeal in Barclays Bank of Kenya Ltd & Another v Gladys Muthoni & 20 Others [2018] KECA 718 (KLR), which held that a claimant must demonstrate differential treatment compared with similarly situated persons or based on a prohibited ground resulting in prejudice. 60.The pleadings herein do not, in my view, demonstrate that the deceased was singled out because of race, sex, pregnancy, disability, ethnicity, religion, or any other prohibited ground. Rather, the Respondent's case is that all probationary employees were treated alike regarding medical cover. 61.Further, even if the Respondent breached the contract, which it did, breach alone does not amount to discrimination. 62.Consequently, the discrimination claim is unsupported by evidence, and it fails. Whether the Claimant is entitled to the reliefs sought 63.The court, having found that the Respondent was in breach of the deceased employee’s contract, entitles the Claimant to compensation for breach of contract. 64.In Kenya Revenue Authority v Menginya Salim Murgani [2010] KECA 508 (KLR), the Court affirmed that damages may be awarded where an employer's breach deprives an employee of contractual benefits. 65.The evidence before the court shows that the Respondent facilitated the deceased’s treatment as medical expenses were paid even in the absence of the medical cover. This position, in my view, weakens the allegation by the Claimant that the Respondent abandoned the deceased during illness. 66.In conclusion, the Claimant’s claim succeeds in terms of the following orders: -a.A declaration that the Respondent was in breach of the deceased employee’s employment contract.b.An award of Kenya Shillings Two Million (Kes. 2,000,000) is hereby granted on account of damages for breach of contract.c.The Respondent will also bear the costs of this suit. 67.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Arunda present for the ClaimantMr. Onyony present for the RespondentMs. Esther S - C/A