[2019] KEELRC 1861 (KLR)
The court found that the claimant failed to prove his entitlement to wages for the period of absence as he did not produce any medical certificate or evidence of being granted sick leave. Furthermore, the claimant had already been compensated under the Workmen Compensation Act for the injuries sustained, and the Act...
Source-derived case information.
- Citation
- [2019] KEELRC 1861 (KLR)
- Parties
- Claimant: Peter M. Lubanga; Respondent: Dayalal Bhanti & Sons Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 962 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs to the respondent
- Judges
- MSA Makhandia
- Legal Topics
- Wages During Sick Leave, Workmen Compensation, Deductions From Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter M. Lubanga
Claimant
Dayalal Bhanti & Sons Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to wages for the period of absence due to illness or injury sustained in the course of employment.
- 2 Whether the claimant can recover compensation under common law after being compensated under the Workmen Compensation Act.
Ratio Decidendi
The court found that the claimant failed to prove his entitlement to wages for the period of absence as he did not produce any medical certificate or evidence of being granted sick leave. Furthermore, the claimant had already been compensated under the Workmen Compensation Act for the injuries sustained, and the Act comprehensively addressed such claims, precluding further recovery under common law or the Employment Act. Therefore, the claim for wages during the period of absence and any further compensation was without merit.
Court Disposition
claim dismissed with costs to the respondent
Orders
- The cause is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 962 OF 2018
(Originally Nairobi Chief Magistrate’s Court Civil Case No. 27 of 2008)
PETER M. LUBANGA CLAIMANT
v
DAYALAL BHANTI & SONS LTD RESPONDENT
JUDGMENT
1. Peter M. Lubanga (Claimant) was employed by Dayalal Bhanti & Sons Ltd (Respondent) as a driver.
2. On 9 January 2008, the Claimant instituted legal proceedings against the Respondent seeking Kshs 273,420/-, said to be wages for 31 months when the Claimant was hospitalised/on sick leave.
3. In a Response filed on 7 March 2008, the Respondent denied being liable to the Claimant.
4. Pursuant to an order of this Court given on 9 May 2018, the Cause was transferred from the subordinate Court to this Court for hearing and determination.
5. The Cause was heard on 19 February 2019 when the Claimant testified and closed his case. The Respondent opted not to lead any evidence.
6. The Claimant filed his submissions on 8 March 2019 while the Respondent filed its submissions on 25 March 2019.
7. The Court has considered all the material placed before.
Wages during absence/ill health
8. In terms of section 6(1)(c) of the Employment Act, cap. 226 (now repealed), an employer was authorised to deduct wages for any period(s) that an employee was absent without lawful cause or permission.
9. Although testifying that he was away because of injuries sustained as a result of a road accident which occurred in the course of employment on 30 August 2008, the Claimant did not produce any medical certificate to show that he was admitted in hospital or was granted sick leave.
10. Without that evidence, the Court finds that the Claimant failed to prove his case to the required standard.
Compensation under Workmen Compensation Act
11. The Court notes that the Claimant admitted that he instituted legal proceedings under the Workmen Compensation Act (now repealed).
12. The Act comprehensively dealt with the type of cause of action the Claimant is now attempting to advance under the common law, and the then law of general application, the Employment Act, cap. 226 (now repealed).
13. The Act provided for compensation or damages due to an employee rendered incapable of work, and the Claimant was compensated. The Claimant cannot now claim compensation on the same ground.
14. The Court finds no merit in the Cause herein and orders it dismissed with costs to the Respondent.
Delivered, dated and signed in Nairobi on this 29th day of March 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Omondi instructed by Nzavi & Co. Advocates
For Respondent Mr. Muli instructed by Munyalo Muli & Co. Advocates
Court Assistant Lindsey