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ELRCDismissedIndustrial Court of Kenya at Mombasa, Appeal from Resident Magistrates Court (cause of action 2007; appeal transferred 11 June 2013)· [2014] KEELRC 876 (KLR)

BlueCatPortServices v BensonNyagaNjue [2014] KEELRC 876 (KLR)

Industrial Court of Kenya at Mombasa
21 March 2014
1,784 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court confirmed employers who can't produce records or prove safety measures stay fully liable for workplace injuries.

What this practically means

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Executive summary

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Benson Nyaga Njue (Respondent) sued Blue Cat Port Services (Appellant) in the Resident Magistrates Court in 2007 for injuries sustained in the course of work. On 13 September 2010 the trial Court found the Appellant 100% liable and awarded Kshs 400,000/- general damages, Kshs 5,000/- special damages, plus costs. The Appellant appealed to the High Court at Mombasa on nine grounds; on 11 June 2013 Odero J. transferred the appeal to the Industrial Court at Mombasa, the 2010 Constitution having conferred exclusive jurisdiction over employment disputes. Radido Stephen J. grouped the grounds into three. On employment, the Respondent testified he worked as a casual turn boy, produced a movement pass and named his supervisor Adam; the Appellant's intake and payment sheets omitted his name, but the forms for Adam's gang were not produced and the Appellant failed to show what passes it issued. The Court, noting the employer keeps employment records, upheld the finding of employment. On liability, the discrepancy between the pleaded stack of sacks and the testimony about a sack on a roller was immaterial; the Appellant produced no evidence of safety systems as required by the Factories Act and never pleaded contributory negligence, so the trial Court's liability finding stood. On quantum, special damages were pleaded and proved and the Appellant gave no basis for interference with the general damages award. The appeal was dismissed with costs to the Respondent and the decretal sum, if deposited in a joint interest-earning account, ordered released.

Key legal issues

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01

Whether the Respondent was the Appellant's employee

Holding

The trial Court correctly found an employment relationship; the Appellant failed to disprove it despite being the custodian of records

Reasoning

The Respondent gave sworn testimony of employment as a casual turn boy, produced a movement pass (Pexh 1) and named his supervisor Adam. Adam testified but the intake forms for the gang working under Adam were not produced, nor was his supervisory role denied. Since the employer keeps employment records, and did not show what passes it issued, the trial Court's finding could not be disturbed.

p. 2
02

Liability and contributory negligence

Holding

The trial Court's finding on liability was upheld; the Appellant led no evidence of a safe system of work and never pleaded contributory negligence

Reasoning

The discrepancy between the pleaded stack of sacks and the testimony about a sack on the roller was not material. The Appellant provided no evidence of the safety systems it had in place as required by the Factories Act and did not plead contributory negligence, so the 50% contributory negligence submission had no foundation.

p. 3
03

Quantum of damages

Holding

The award of Kshs 400,000/- general damages and Kshs 5,000/- special damages was not excessive and was not disturbed

Reasoning

Special damages were specially pleaded and proved. The authorities cited before the trial Court were dated (the most recent from 2004 against a 2010 judgment) and the Appellant did not demonstrate why the award should be interfered with.

p. 3

Legal principles established

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  • The employer bears responsibility to provide safety gear without waiting for the employee to request it
  • The employer is the custodian of employment records and must produce them when disputing employment

Court orders

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  1. 1.The Appeal against the decision of Hon T. Gesora delivered on 13 September 2010 is dismissed with costs of the Appeal to the Respondent
  2. 2.If the decretal sum was deposited in a joint interest earning account as consented to by the parties on 8 October 2010 it should be released to the Respondent and or his Advocates

Authorities

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Legislation

  • Evidence Actsections 107(1) and 109
  • Employment Act, cap 226section 38 (now repealed)
  • Factories Actnot specified (now repealed)

Cases cited (5)

  • Mumende v Nyali Golf & Country Club
    (1991) KLR 13
  • Jackson Radoli v Systematic Suppliers Co Ltd
    Mombasa High Court Civil Case No. 925 of 1991 (judgment on 2 August 1995)
  • Ruth Kadide Mwakuwanda v Danida/PIV Project & Another
    Mombasa High Court Civil Case No. 64 of 1993 (judgment in 1994)
  • Joseph Masese v Peter Wanganga
    Nairobi High Court Civil Case No. 2927 of 1990 (judgment in 1994)
  • Mulwa Musyoka v Wadia Construction
    Nairobi High Court Civil Case No. 1321 of 1997 (judgment in 2004)
On appeal from
Resident Magistrates Court
not stated
Jurisdiction invoked
Order of Odero J. dated 11 June 2013 transferring the High Court appeal to the Industrial Court pursuant to exclusive jurisdiction over employment disputes under the Constitution of 2010

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, "BlueCatPortServices v BensonNyagaNjue [2014] KEELRC 876 (KLR)", Case Analysis (2014). Industrial Court of Kenya at Mombasa, Appeal from Resident Magistrates Court (cause of action 2007; appeal transferred 11 June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/876/eng@2014-03-21

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