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ELRCDismissedELRC Appeal No. 260 of 2018· [2018] KEELRC 2556 (KLR)

John Mburu t/a B.P Highway Petrol Station & another v Wilson Jerem Ogolla [2018] KEELRC 2556 (KLR)

Employment and Labour Relations Court
20 December 2018
DMD.K. Njagi Marete
1,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellants appealed to the Employment and Labour Relations Court at Eldoret against the judgment and decree of Senior Resident Magistrate Grace Mmasi in Eldoret CMCC No. 1227 of 2001, in which the respondent, Wilson Jerem Ogolla, was awarded damages for injuries to his right-hand fingers sustained on or about 15th March 2000 while repairing a compressor at the 1st appellant's petrol station. The respondent's case was that the 2nd appellant, an employee, switched on the electricity without warning while he worked. The appeal attacked the award as excessive, the 100% finding on liability, and the finding that the respondent had proved his case. The appellants argued that the respondent was employed as a pump attendant by the 1st appellant's wife rather than as a mechanic, and that he was therefore acting outside the scope of his employment in the compressor room. The court noted that the respondent's trial evidence stood unchallenged and that the appellants called no witnesses, confining them to quantum. It held the respondent established injury at the workplace through the appellants' negligence, aggravated by the failure to provide protective gear, and dismissed the scope-of-employment argument as unsustainable. On quantum, the court declined to reassess damages downwards, holding that nineteen years since inception and nine years since the lower court judgment meant inflation and the effluxion of time rendered any adverse reconsideration an injustice. The appeal was dismissed with each party bearing their own costs of the appeal, while the appellants were ordered to bear the costs at the lower court.

Key legal issues

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01

Liability for workplace injury

Holding

The learned magistrate correctly found the appellants 100% liable; the respondent was injured at work through the appellants' negligence and absence of protective gear

Reasoning

The respondent's trial evidence that he was assigned to repair a compressor and was injured when the 2nd appellant switched on the electricity was uncontroverted; the appellants adduced no evidence. The claim that the injury fell outside the scope of duty was rejected as unmeritorious, and the lack of protective gear amounted to negligence.

p. 2
02

Excessive damages / reassessment of quantum

Holding

The court declined to interfere with quantum because of the lapse of time since the 2001 cause and 2010 judgment

Reasoning

The court held that nineteen years had passed since inception of the cause and nine years since the lower court judgment, so inflation and the effluxion of time rendered any downward reassessment an injustice; the quantum issue was therefore left untouched.

p. 2

Legal principles established

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  • Where a plaintiff's evidence at trial is unchallenged and the defendant calls no witnesses, the defendant cannot displace the finding on liability and may only quarrel with quantum.
  • An employer's failure to furnish protective gear establishes negligence for injuries sustained at the workplace, even where the employee acts outside his strict job description.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs of the appeal
  3. 3.Appellants to bear the costs at the lower court

Authorities

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Legislation

  • LD 104 (Labour Office form)Proof of employment
On appeal from
Senior Resident Magistrate's Court, Eldoret
CMCC No. 1227 of 2001
Jurisdiction invoked
First appellate jurisdiction over an appeal from the magistrates' court in a claim for work-related injuries (originally filed as HCC Appeal No. 23 of 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Mburu t/a B.P Highway Petrol Station & another v Wilson Jerem Ogolla [2018] KEELRC 2556 (KLR)", Case Analysis (2018). ELRC Appeal No. 260 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2556/eng@2018-12-20

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