Stephen Kang'ethe Ngandu v Kofinaf Company Limited
The bottom line
#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
#Executive summary
#Key legal issues
#Burden of proof in a negligence claim against an employer
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.
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.
Whether the High Court could determine the unpleaded issue of want of a driving licence
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.
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.
Whether the workmen's compensation form amounted to an admission of liability
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.