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ELRCDismissedAppeal No 9 of 2015· [2016] KEELRC 393 (KLR)

George Odhiambo & another v Isaac Muyomba Tungululu [2016] KEELRC 393 (KLR)

High Court of Kenya
11 November 2016
3,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first appeal against the judgment of M.K. Mwangi (PM) at Mombasa in RMCC No.3551 of 2009 delivered on 2nd March 2012, in which the respondent, a carpenter, had been awarded general damages of kshs.425,000 with liability for an industrial accident apportioned at 65:35% in his favour. The respondent testified that he was employed as a machine operator at the appellants' workshop and, while sawing timber on 22.5.2008, the saw started falling, the metal protective grid collapsed, and his left hand was cut, resulting in amputation of the 2nd and 3rd fingers, a serious cut to the left thumb and 16% permanent partial disability. The appellants denied the employment relationship, contending the respondent was an independent contractor, and faulted the trial court for apportioning liability, allegedly ignoring their defence and submissions, and awarding excessive damages. The court re-evaluated the evidence, noting the first appellant gave only hearsay evidence and the second appellant, who allegedly hired the respondent, gave no evidence to rebut the respondent's testimony. It held that the variance between pleadings and evidence was immaterial, as the core fact of employment was undisputed, and that failure to provide protective gear and a safe machine established negligence. The court found the trial court had considered the defence and submissions, and declined to interfere with the discretionary award of damages, having found no irrelevant or omitted factor and no inordinately excessive award. The appeal was dismissed with costs.

Key legal issues

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01

Liability for the industrial accident and proof of employment relationship

Holding

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.

Reasoning

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.

p. 4
02

Whether the trial court failed to consider the defence and submissions

Holding

The trial court did consider the defence, the evidence and the authorities cited; that ground of appeal failed.

Reasoning

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.

p. 5
03

Whether the award of kshs.425,000 general damages was excessive

Holding

The award was reasonable; the appellate court declined to interfere with the discretionary award.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 4
  • Occupational Safety and Health ActSection 6(1)

Cases cited (2)

  • Galaxy Paints Co. Ltd vs Falcon Guards Ltd
    [2000] 2EA 385 (CAK)
  • Kennedy Mutinda vs Basco Production (Kenya) Limited
    [2013] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.