Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment and Labour Relations Court Appeal (transferred from High Court, Mombasa; heard 7th March 2016)· [2016] KEELRC 1051 (KLR)

Alfred Kimuyu Mutiso v Kenya Container Terminals Limited & another [2016] KEELRC 1051 (KLR)

Employment and Labour Relations Court
22 June 2016
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer's appeal against a Kshs. 1.2 million award to an injured worker failed because it offered no evidence showing it kept the workplace safe.

What this practically means

#

Executive summary

#
The 1st Respondent, a Loader employed by the Appellant, was injured on 10th December 1996 while loading empty containers at the 2nd Respondent's premises when a forklift driven by the 2nd Respondent's driver struck him. The Chief Magistrate's Court at Mombasa in Civil Case Number 4408 of 2004 awarded him General Damages of Kshs. 1,200,000, Loss of Earnings of Kshs. 31,500 and Special Damages of Kshs. 12,558, payable 100% by the Appellant, while dismissing the claim against the 2nd Respondent. The Appellant appealed on liability, contributory negligence, and quantum, arguing the claimant jumped off the forklift and authored his own misfortune and that damages should have been Kshs. 450,000. The 2nd Respondent, without cross-appealing, argued the claim against it should have been dismissed on limitation grounds since the ex parte extension of time was invalid. The Court found the employer liable for failing to provide safety boots and supervision, and noted the Appellant called no evidence at trial to rebut the negligence claim. On limitation, it held that although ex parte extensions can be contested at trial, a Chief Magistrate cannot question ex parte orders granted by the High Court, and the 2nd Respondent had filed no cross-appeal. The award of general damages was held fair and commensurate with the uncontested medical evidence. The appeal was dismissed with no order as to the costs of the appeal; lower court costs were to be paid as ordered by that court. Judgment was delivered at Mombasa on 22nd June 2016 by James Rika, Judge.

Key legal issues

#
01

Employer's liability for employee's workplace injury

Holding

The Trial Court correctly held the employer 100% liable; the employer supplied no safety boots, provided no supervision, and called no evidence to rebut negligence.

Reasoning

The 1st Respondent worked unsupervised and without safety boots when injured by the 2nd Respondent's forklift while under the Appellant's instructions. The Appellant called no evidence at trial and did not discharge its duty to rebut the negligence claim. Authorities on employer duties supported the finding of full liability.

p. 3
02

Validity of ex parte extension of time to file suit out of the limitation period

Holding

Ex parte leave to file out of time is not final and may be contested at trial, but the Trial Magistrate could not question an ex parte order granted by the High Court, a superior court.

Reasoning

The Court agreed that ex parte extension orders are not immune from challenge at trial, ideally where courts are of cognate jurisdiction. However, the extension here was granted by the High Court, and the Chief Magistrate properly declined to revisit it. Additionally, the 2nd Respondent never cross-appealed, so the issue could not assist it.

p. 4
03

Quantum of General Damages

Holding

The award of Kshs. 1,200,000 for multiple fractures, skin loss, soft tissue injuries and 25% disablement was fair and not interfered with.

Reasoning

The medical evidence was uncontested as the Appellant called no evidence. Comparable past decisions involving similar injuries were placed before the Trial Court. The claimant sought Kshs. 2,000,000 but was awarded less, indicating restraint. The appellate court found no reason to disturb the assessment.

p. 4

Legal principles established

#
  • Employers have a statutory and common law duty to supply their Employees a safe working environment, train them on systems of work, and offer effective supervision.
  • Where employees allege employer negligence, it is the employer's duty to rebut the claim; failure to call evidence is fatal.
  • Ex parte leave extending time is not final and does not oust a defendant's right to raise time bar at trial, but a lower court cannot question ex parte orders granted by a superior court.

Court orders

#
  1. 1.The Appeal is dismissed
  2. 2.No order on the costs of the Appeal
  3. 3.Costs in the Lower Court shall be paid as ordered by that Court

Authorities

#

Cases cited (4)

  • Tana and Athi River Development Authority v. Joseph Mbindyo & 3 Others
    [2013] e-KLR, Civil Appeal Number 253 of 2011
  • Rashid Ali Faki v. A.O. Said Transporters Limited
    [2016] e-KLR, Employment and Labour Relations Court Appeal Number 1 of 2015
  • Mghosi v. Grayatri Engineering Works Limited
    [1981] KLR 163
  • Sokoro Saw Mills Limited v. Bernard Muthimbi
    High Court of Kenya at Nakuru Civil Case Number 38 of 1995
On appeal from
Chief Magistrate's Court at Mombasa
Civil Case Number 4408 of 2004
Jurisdiction invoked
Appeal transferred by the High Court, Mombasa to the Employment and Labour Relations Court, Mombasa on 14th May 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alfred Kimuyu Mutiso v Kenya Container Terminals Limited & another [2016] KEELRC 1051 (KLR)", Case Analysis (2016). Employment and Labour Relations Court Appeal (transferred from High Court, Mombasa; heard 7th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1051/eng@2016-06-22

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