Homegrown Kenya Limited v Aurela Wanjiru Gitahi [2018] KEELRC 64 (KLR)
The bottom line
#A Kenyan court threw out a workplace injury award because the employee couldn't prove the accident actually happened at work.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent was at work and suffered an accident at the appellant's premises on 2nd April, 2005
- 2.Whether the trial magistrate erred in finding the appellant liable and apportioning liability at 50% without establishing the place of the accident
- 3.Whether the award of general damages of Kshs.100,000.00 was excessive
Key legal issues
#Duty of a first appellate court
The court was bound to re-evaluate the evidence and reach its own conclusions, as guided by Selle v Associated Motor Boat Co.
The court cited Kamau v Muigai and Selle & another v Associated Motor Boat Co. Ltd, holding that a first appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses. It is not bound by the trial court's findings of fact where those findings failed to take account of material circumstances or probabilities.
Whether the respondent established an accident at the workplace
The appellant's defence evidence that the respondent was off duty and that no accident was reported in the clinic or accident registers was not addressed by the trial court; the place of injury remained unestablished.
Although the respondent was an employee, she only attended Naivasha District Hospital a day after the alleged accident, and the clinic and accident registers produced by the appellant contained no record of the accident or treatment. The trial court failed to resolve whether the respondent was at work on 2nd April 2005 or where the accident occurred, resulting in an eschewed finding on liability.
Apportionment of liability without foundation
Having failed to establish the occurrence and place of the accident, the trial court had no basis to apportion liability at 50%.
The court found the foundation of the claim was lost where the trial court never addressed the place of the accident. Apportionment of liability presupposes proof of an accident attributable to the defendant; without that foundational finding, the award of damages of Kshs.100,000 reduced to Kshs.50,000 on liability could not stand and was set aside.
Legal principles established
#- A first appellate court must re-evaluate the evidence, assess it and reach its own conclusions, making due allowance for not having seen or heard the witnesses
- Where the foundational facts of an accident (occurrence and place) are not established, there is no basis for apportioning liability
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the trial court in Naivasha PMCC No.485 of 2009 delivered on 20th September, 2013 is set aside
- 3.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Naivasha
- PMCC No. 485 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Senior Resident Magistrate's court (the appeal originally filed in the High Court at Naivasha and transferred to the Employment and Labour Relations Court)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons, the court find merit in this appeal and is hereby allowed. The judgement of the trial court in Naivasha PMCC No.485 of 2009 delivered own 20th September, 2013 is hereby set aside. Each party shall bear own costs.
Without addressing the place of accident and injuries being at the work place and despite the respondent having been an employee of the appellant, the trial court had no basis going into apportioning liability. The foundation of the claim was lost.
As a first appellate court, the court has the duty to re-evaluate the evidence, assess it and reach its own conclusions and noting that it had neither seen nor heard the witnesses and hence making due allowance for that as held in the case of Kamau versus Muigai [2006] 1 KLR.
On the scheduled date to confirm the filing of written submission on 2nd October, 2018 the respondent remained absent from court.
Issues in the judgment
#The judgment states the date of the accident inconsistently - the lower court's judgment is said to record 2nd March 2005 while all other records and pleadings relate to 2nd April 2005, and the appellant's submissions at one point refer to '2nd May 2005'.
The numbering of the paragraphs of the judgment is irregular (paragraphs 1, 2, 4, 5 repeated twice, 6-21).
The employment relationship between the appellant and the respondent is described as employment in a farm setting (grading section, farm clinic), yet the suit was transferred to the Employment and Labour Relations Court; the judgment does not record the basis of the transfer.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Homegrown Kenya Limited v Aurela Wanjiru Gitahi [2018] KEELRC 64 (KLR)", Case Analysis (2018). Appeal No. 55 of 2017 (Formerly Naivasha High Court Civil Appeal No. 34 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/64/eng@2018-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.