Rising Star Commodities Limited v Daniel Akwera [2016] KEELRC 589 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Burden of proving employment where the employer denies it
Once the Appellant denied the employment, the burden lay on the Respondent to establish he was engaged as a casual loader on the material date; the Respondent produced no document of engagement and his name was absent from the casual employees' list.
The Trial Court's finding of employment rested on paragraph 4 of the Defence, a without-prejudice alternative line of defence, which the Trial Court wrongly treated as an admission. DW1 and DW2 denied knowing the Respondent and the casual workers' lists did not include his name. The Court fully adopts the principle in Malelu Muthama v. Kay Construction Company Limited, a materially similar case.
Reliability of the Respondent's evidence on injury and treatment
The Respondent's evidence raised issues of truthfulness, credibility, consistency and reliability: treatment notes showed 26th October 2005 not the pleaded 25th October, he claimed only Kshs. 10 in medical expenses, the treating dispensary witness was not called, and Dr. Ashraph saw no injuries.
The initial treatment notes were never produced by their author, whose genuineness was disputed; the medical report was prepared years after treatment and based on the disputed notes; the doctor saw no scar. Together with the failed proof of employment, these flaws established fundamental defects in the Trial Court's judgment warranting reversal.
Legal principles established
#- Where employment is denied by the alleged employer, the employee must prove the fact of employment, and an alternative line of defence stated without prejudice is not an admission of employment
Court orders
#- 1.Appeal allowed
- 2.No order on the costs
- On appeal from
- Senior Resident Magistrate's Court, Mombasa
- Mombasa SRMCC No. 176 of 2007
- Jurisdiction invoked
- Appeal transferred from the High Court to the Employment and Labour Relations Court on jurisdictional grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rising Star Commodities Limited v Daniel Akwera [2016] KEELRC 589 (KLR)", Case Analysis (2016). Employment and Labour Relations Court Appeal (Mombasa) — formerly Mombasa High Court Civil Appeal Number 222 of 2010, arising from Mombasa SRMCC No. 176 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/589/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.