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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 420 of 2018· [2022] KECA 1140 (KLR)

Stephen Kang'ethe Ngandu v Kofinaf Company Limited

Court of Appeal
21 October 2022
3,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that workers suing employers for negligence must prove their claim, and an employer's accident report is not an admission of liability.

What this practically means

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Executive summary

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This was a second appeal against the High Court's decision (J. Kamau, J.) which had allowed the respondent's first appeal and set aside a magistrate's award of Kshs 562,000 to the appellant, a spanner boy injured when a tractor he was driving at the respondent's coffee estate overturned. The magistrate had found the appellant was authorized to drive and apportioned liability 80:20 against the employer; the High Court held the appellant failed to prove he was injured in the course of employment, placing the burden of proof on him under sections 107 and 109 of the Evidence Act. The Court of Appeal (Omondi, JA; Kantai and Laibuta, JJA concurring) confined itself to matters of law per Maina v Mugiria and related authorities. It held the learned judge properly re-evaluated the evidence as first appellate court and correctly applied the burden-of-proof principles, noting with approval Martin A Waindi and Attorney General v Law Society of Kenya. On the unpleaded licence issue, the Court found it arose repeatedly at trial, was addressed by both parties, and was satisfactorily dealt with by the High Court, invoking the principle that a court may determine an unpleaded issue so addressed. The Court also accepted that the employer's statutory accident-notification form under the Work Injury Benefits Act was not an admission of liability. Finding no misapprehension of law and no basis to interfere, the Court dismissed the appeal with costs to the respondent.

Key legal issues

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01

Burden of proof in a negligence claim against an employer

Holding

The High Court, as first appellate court, properly placed the burden on the appellant to prove he was injured in the course of employment, including proof of authorization to drive, and correctly applied sections 107 and 109 of the Evidence Act.

Reasoning

The claim was founded on the tort of negligence, so the burden lay on the claimant. The appellant's assertion that the transport manager authorized him required corroboration; the supervisor's recorded statement denied giving such instructions. The first appellate court was entitled to re-evaluate the evidence and draw its own conclusions, which it did properly.

p. 5
02

Whether the High Court could determine the unpleaded issue of want of a driving licence

Holding

The issue of the appellant's lack of a driving licence arose several times at trial, was addressed by both parties in submissions, and the High Court dealt with it satisfactorily; no error arose from its consideration.

Reasoning

Relying on Odd Jobs v Mubia and Maithene Malindi, a court may determine an unpleaded issue where both parties addressed it and left it for determination. Order 42 rule 25 also permits the first appellate court to determine the suit on a ground other than that on which the lower court proceeded. The licence issue was fundamental and intertwined with liability.

p. 6
03

Whether the workmen's compensation form amounted to an admission of liability

Holding

The form was a statutory notice of an occupational accident under the Work Injury Benefits Act, 2007, and compliance with it cannot be construed as an admission of liability.

Reasoning

The employer's notification to the Directorate of Occupational Safety and Health Services is a statutory duty regardless of the employer's opinion on whether the injury occurred in the course of employment. The appellant's contention that the form defeated the denials of liability therefore failed.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have, failed to consider matters they should have, or that the decision is perverse.
  • In an action for negligence, the burden of proof falls on the party alleging it.
  • A court may determine an issue not pleaded where the issue was addressed by both parties and left for the court to determine.
  • Compliance by an employer with the statutory duty to notify an occupational accident under the Work Injury Benefits Act does not constitute an admission of liability.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Traffic Act (cap 403)section 30(1)
  • Traffic Act (cap 403)section 2
  • Evidence Actsection 107
  • Evidence Actsection 109
  • Evidence Actsection 63
  • Insurance (Motor Vehicles Third Party Risks) Act (cap 405)section 2
  • Work Injury Benefits Act, 2007
  • Civil Procedure Rules, 2010Order 42 rule 25

Cases cited (9)

  • Maina versus Mugiria
    [1983] KLR 78

    Second appeal confined to matters of law only

  • Kenya Breweries Ltd versus Godfrey Odongo
    Civil Appeal No 127 of 2007

    Second appeal principles

  • Stanley N Muriithi & another versus Bernard Munene Ithiga
    [2016] eKLR

    Second appeal principles

  • Kenya Horticultural Exporters Ltd v Julius Munguto Maweu
    [2010] eKLR

    Vicarious liability where employee's criminal act is within course of employment (appellant's submission)

  • Attorney General vs Law Society of Kenya & another
    [2017] eKLR

    No employer liability for injuries through willful misconduct or criminal act

  • Martin A Waindi v Pharmaceutical Manufacturing Co Ltd & another
    [1994] eKLR

    Burden of proof in negligence falls on the party alleging it

  • IEBC & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR

    Parties are bound by their pleadings (appellant's submission)

  • Odd Jobs vs Mubia
    [1970] EA 476

    Court may determine an unpleaded issue addressed by both parties

  • Maithene Malindi Enterprises Limited v Kaniki Karisa & 2 others
    [2018] eKLR

    Court may determine an unpleaded issue addressed by both parties

On appeal from
High Court of Kenya at Nairobi
HC. CA. No. 73 of 2016
Jurisdiction invoked
Second appeal to the Court of Appeal under the appellate structure of the Civil Procedure Act/Rules (matter of law only)

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, "Stephen Kang'ethe Ngandu v Kofinaf Company Limited", Case Analysis (2022). Civil Appeal 420 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1140/eng@2022-10-21

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