Homegrown (Kenya) Ltd v Consepter Moraa [2015] KEELRC 87 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Employment status and presence on duty
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
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.
Whether injury in the workplace was proved
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
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.
Negligence and apportionment
Wet floor without gumboots or skid-proof footwear established negligence; 20% apportionment to the Respondent for lack of extra care was within applicable principles
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.
Quantum of general damages
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
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.
Whether the judgment was unsupported by law or facts
Appellant failed to identify any facts or law ignored by the lower court; the appeal was dismissed as meritless
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with no order as to costs
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.