[2020] KEELRC 1051 (KLR)
The court found that the Respondent did not contest the Claimant's evidence regarding the occurrence of the workplace injury or the extent of the injuries sustained. However, in light of the Supreme Court's guidance in Law Society of Kenya v Attorney General & Ar (2019) eKLR, the court held that the assessment of...
Source-derived case information.
- Citation
- [2020] KEELRC 1051 (KLR)
- Parties
- Claimant: Quinto Wabwire Oswaro; Respondent: Metal Cans & Enclosures Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1445 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Partly allowed; compensation assessment referred to Director of Occupational Safety and Health Services; medical expenses awarded.
- Judges
- MSA Makhandia
- Legal Topics
- Workplace Injury, Employer Negligence, Work Injury Benefits Act, Occupational Safety, Medical Assessment, Compensation Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Quinto Wabwire Oswaro
Claimant
Metal Cans & Enclosures Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Respondent was negligent in failing to provide a safe working environment for the Claimant resulting in injury.
- 2 Whether the Employment and Labour Relations Court has jurisdiction to assess compensation for workplace injuries under the Work Injury Benefits Act.
- 3 Whether the Claimant is entitled to compensation for medical expenses incurred due to the workplace injury.
Ratio Decidendi
The court found that the Respondent did not contest the Claimant's evidence regarding the occurrence of the workplace injury or the extent of the injuries sustained. However, in light of the Supreme Court's guidance in Law Society of Kenya v Attorney General & Ar (2019) eKLR, the court held that the assessment of compensation for workplace injuries falls within the statutory mandate of the Director of Occupational Safety and Health Services under the Work Injury Benefits Act. Therefore, the court directed the parties to the Director for assessment of compensation based on the medical evidence presented. The court also allowed the Claimant's claim for medical expenses, as these were...
Court Disposition
Partly allowed; compensation assessment referred to Director of Occupational Safety and Health Services; medical expenses awarded.
Orders
- The Director of Occupational Safety and Health Services to assess the compensation payable to the Claimant and file a report with the Court within 45 days.
- The Respondent to cooperate with the Director of Occupational Safety and Health Services.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1445 OF 2015
QUINTO WABWIRE OSWARO…………….CLAIMANT
V
METAL CANS & ENCLOSURES LTD….RESPONDENT
JUDGMENT
1. This Cause was heard on 30 January 2020 when Quinto Wabwire Oswaro (Claimant) testified and called another witness before he closed his case. Metal Cans & Enclosures Ltd (Respondent) opted not to call any witness.
2. Although the Court gave the parties time to attempt out of court settlement, no resolution was reached.
3. The Claimant filed his submissions on 6 May 2020 (should have been filed/served before 20 March 2020) while the Respondent’s submissions were not on record by this morning.
4. The Court has considered the pleadings, evidence and submissions.
5. The Claimant was employed by the Respondent as a machine operator. He got injured in the workplace on 18 March 2015. He attributed negligence to the Respondent.
6. According to the Claimant, the Respondent failed to put in place a safe and healthy work environment, failed to service the compressor machine he was operating, failing to ensure adequate lighting and failure to provide protective equipment.
7. The Claimant called a doctor to testify as to the injuries he sustained. The doctor produced a medical report showing that the Claimant sustained injuries leading to amputations of the right index finger, middle finger, ring finger and little finger at the proximal phalanges.
8. The doctor assessed permanent incapacity at 40%.
9. The Respondent did not present any contrary evidence and therefore the question of liability is moot.
10. However, there has been a ringing legal question on jurisdiction over injuries sustained in the workplace and subject to Work Injury Benefits Act.
11. The Supreme Court dealt with the questions in Law Society of Kenya v Attorney General & Ar (2019) eKLR and invoked the principle of legitimate expectation in guiding on how pending disputes should be dealt with.
12. The assessment of compensation under the Work Injury Benefits Act is founded upon certain criteria which the Director of Occupational Safety and Health Services rather than the Courts is an expert in.
13. In the circumstances, the Court will send the parties to the Director of Occupational Safety and Health Services for purposes of assessment of compensation based on the medical reports which were presented in Court.
14. The Claimant further produced receipts for medical costs/expenses worth Kshs 7,000/-.
15. The Court will allow the same.
Conclusion and Orders
16. From the foregoing, the Court orders
(a) The Director of Occupational Safety and Health Services to assess the compensation payable to the Claimant and cause a report to be filed with the Court within 45 days.
(b) The Respondent to cooperate with the Director of Occupational Safety and Health Services.
(c) Mention date to be scheduled for further directions.
Delivered through video/email, dated and signed in Nairobi on this 22nd day of May 2020.
Radido Stephen
Judge
Appearances
For Claimant Mr. Nyabena instructed by Nyabena Alfred & Co. Advocates
For Respondent Ms. Munyao instructed by Ngaywa Ngigi & Kibet Advocates
Court Assistant Judy Maina