George Odhiambo & another v Isaac Muyomba Tungululu [2016] KEELRC 393 (KLR)
The bottom line
#The High Court in Mombasa upheld a KShs.425,000 award to an injured saw machine operator, confirming employers cannot easily overturn injury payouts on appeal.
What this practically means
#Executive summary
#Key legal issues
#Liability for the industrial accident and proof of employment relationship
The respondent proved on a balance of probability that he was employed by the appellants to operate the timber sawing machine and was injured due mainly to the appellants' negligence; the 65:35% apportionment was upheld.
The first appellant gave only hearsay evidence, not having been present at the hiring by the second appellant, who adduced no evidence to deny the respondent's testimony. The defence also failed to prove trespass. The undisputed evidence showed no protective gear was provided and the machine's protective grid was weak, exposing the respondent to danger. Variance in pleadings was immaterial since the core fact of employment was undisputed.
Whether the trial court failed to consider the defence and submissions
The trial court did consider the defence, the evidence and the authorities cited; that ground of appeal failed.
Excerpts from the impugned judgment show the trial court noted the defence denial of the claim and Dw1's evidence, and referred to the authorities cited when assessing injuries and quantum. It was therefore incorrect for the appellants to submit that their defence and submissions were ignored.
Whether the award of kshs.425,000 general damages was excessive
The award was reasonable; the appellate court declined to interfere with the discretionary award.
The applicable test is whether the trial court considered an irrelevant factor, ignored a relevant one, or the award is inordinately excessive. The trial court considered the nature of the injuries (amputation of two fingers and a cut thumb), the 16% disability, the authorities cited and inflation. The appellants did not discharge the burden of proving any error in principle.
Legal principles established
#- An appellate court should not interfere with the discretionary award of damages by the trial court unless it is shown that an irrelevant factor was considered, a relevant one ignored, or the award is inordinately excessive.
- On a first appeal, the evidence on record must be re-evaluated.
- Unrebutted oral evidence of employment is sufficient proof on a balance of probability, and variance between pleadings and evidence is immaterial where the core fact of employment is undisputed.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- On appeal from
- Principal Magistrate's Court at Mombasa
- RMCC No.3551 of 2009
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court at Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Wachira Gitau v The Hon. Attorney General & Joyce Wangithi Kariuki[2019] KEHC 3400 (KLR)25 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "George Odhiambo & another v Isaac Muyomba Tungululu [2016] KEELRC 393 (KLR)", Case Analysis (2016). Appeal No 9 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/393/eng@2016-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.