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ELRCDismissedCivil Appeal No 3 of 2015· [2015] KEELRC 87 (KLR)

Homegrown (Kenya) Ltd v Consepter Moraa [2015] KEELRC 87 (KLR)

Employment and Labour Relations Court (transmitted from the High Court, Nakuru)
17 December 2015
1,158 words in judgment
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The bottom line

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A Kenyan employer lost its appeal against an 80% liability finding for a workplace injury because it failed to produce its own employment records.

What this practically means

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Executive summary

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This is a first appeal decided by Radido Stephen J at Nakuru on 17 December 2015, arising from a judgment delivered on 28 March 2012 by Hon. E Boke in a magistrates' court, which found the employer (Appellant) 80% liable for a workplace injury suffered by the employee (Respondent) on 23 January 2006 and awarded Kshs 120,000/- general damages and Kshs 3,000/- special damages. The Appellant raised ten grounds, grouped into three: liability, quantum, and whether the judgment was supported by law and facts. On liability, the court held the Respondent proved employment and attendance with a pay slip and salary review letter; the Appellant's failure to produce the muster roll or call the supervisor or a personnel witness shifted the evidentiary burden onto it. On injury, the trial court was entitled to believe the Respondent's testimony and the Naivasha District Hospital treatment notes, the clinic registers having been unreliable and not put to the Respondent in cross-examination. On negligence, the wet floor without gumboots grounded the employer's primary duty to provide a safe workplace and protective gear, and the 20% apportionment was within principle. On quantum, although the injuries in the Respondent's cited authorities were more severe, ten years of inflation justified the award, and the court admonished counsel to cite comparables close in time to the injury. The appeal was dismissed with no order as to costs, the Respondent having failed to file written submissions.

Key legal issues

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01

Employment status and presence on duty

Holding

Respondent proved employment and attendance on the material date; failure to produce muster roll or call the supervisor, Dinah, allowed the evidentiary burden to shift to the Appellant

Reasoning

The Respondent produced a pay slip and salary review letter. The lower court noted the Appellant's failure to produce the muster roll and the unexplained failure to call the supervisor. Once the employee made a prima facie showing, the evidentiary burden shifted to the employer, who alone kept attendance records and could easily have produced them or called a personnel witness.

p. 2
02

Whether injury in the workplace was proved

Holding

Yes - the lower court was entitled to believe the Respondent's testimony supported by treatment notes from Naivasha District Hospital, despite clinic registers suggesting no record

Reasoning

The Appellant's clinic registers were not shown to the Respondent in cross-examination, and there was evidence that not all injuries were recorded in them. No evidence impugned the genuineness of the hospital treatment notes. The trial court's acceptance of the Respondent's account was therefore open to it on the material.

p. 2
03

Negligence and apportionment

Holding

Wet floor without gumboots or skid-proof footwear established negligence; 20% apportionment to the Respondent for lack of extra care was within applicable principles

Reasoning

The evidence showed the floor was wet and the Respondent was not supplied with gumboots or similar protective footwear. The magistrate was entitled to apportion 20% liability to the Respondent for not being extra careful, and the primary duty to provide a safe workplace and protective gear lay on the employer, who produced no records of issuing such gear.

p. 2
04

Quantum of general damages

Holding

Award of Kshs 120,000/- for soft tissue injuries left undisturbed; though the injuries in the cited authorities were more severe, 10 years of inflation justified the award

Reasoning

The magistrate considered authorities involving more severe soft tissue injuries but compensated for the decade of inflation since those awards. The court noted counsel should cite authorities close in time to the injury or determination, and declined to interfere with the assessment.

p. 3
05

Whether the judgment was unsupported by law or facts

Holding

Appellant failed to identify any facts or law ignored by the lower court; the appeal was dismissed as meritless

Reasoning

The Appellant did not point to any overlooked facts or law. The court found the Appellant had conducted its case casually and was seeking a second bite at the cherry, warranting dismissal of the appeal.

p. 3

Legal principles established

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  • On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions
  • Where an employer keeps employment records (e.g. muster roll, attendance records) and withholds them, the evidentiary burden shifts to the employer once the employee makes a prima facie case
  • The primary obligation to ensure a safe working environment and provide protective gear rests on employers
  • In personal injury cases, counsel should cite authorities as close as possible in time to the injury or determination, since inflation is a relevant factor

Court orders

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  1. 1.Appeal dismissed with no order as to costs
  2. 2.Lower court judgment on liability at 80% against the Appellant and awards of Kshs 120,000/- general damages and Kshs 3,000/- special damages left undisturbed

Authorities

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Cases cited (2)

  • Fanny Esikalo v Dorothy Muchene
    Nairobi HCCC No. 624 of 1991
  • Loise Nyambeki Oyugi v Omar Haji Hassan
    HCCC No. 4150 of 1991
On appeal from
Lower Court (magistrates' court) - judgment by Hon. E Boke
not stated
Jurisdiction invoked
First appeal transmitted to this Court by direction of the Resident Judge on 10 March 2015

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, "Homegrown (Kenya) Ltd v Consepter Moraa [2015] KEELRC 87 (KLR)", Case Analysis (2015). Civil Appeal No 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/87/eng@2015-12-17

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