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ELRCDismissedELRC Appeal from Mombasa SPMCC No. 1062 of 2017· [2019] KEELRC 147 (KLR)

Richard Makori Nyambuku v Dodwell & Company East Africa Limited [2019] KEELRC 147 (KLR)

Employment and Labour Relations Court
11 December 2019
LNLinnet Ndolo
1,700 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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This was a first appeal to the Employment and Labour Relations Court at Mombasa against the decision of Hon. Francis Kyambia in Mombasa SPMCC No. 1062 of 2017, delivered on 21st September 2018, dismissing the Appellant's claim for damages for injuries allegedly sustained at work on 7th May 2013 at the Respondent's Port Reitz premises. The Appellant pleaded that he slid on a greased slippery surface and injured his left elbow, attributing the accident to the Respondent's negligence and breach of contractual and statutory duty; the Respondent denied the claim and contended no accident occurred on its premises. The Appellant raised eleven grounds of appeal, which the Court grouped into liability and quantum. In its re-evaluation as a first appellate court, the Court adopted the settled principle that it must reconsider the evidence and draw its own conclusions without seeing the witnesses. The Court found the trial Magistrate's reasoning sound: the Appellant bore the burden of proving he was injured in the course of employment, and doubts arising from the absence of witnesses, non-reporting of the accident, and a prior statement placing the injury at Likoni Ferry had justified dismissal. The Court declined to determine the Respondent's submission, raised for the first time in written submissions without a cross-appeal, that Section 16 of the Work Injury Benefits Act ousted the court's jurisdiction. On quantum, the Court applied the principle of non-interference with discretionary awards and declined to disturb the trial court's hypothetical award. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Whether the Appellant was injured in the course of employment

Holding

The Appellant failed to discharge the burden of proving he was injured in the course of duty at the Respondent's premises; the trial court's finding was sound

Reasoning

The trial court had doubted the Appellant's testimony: no workmate witnessed the accident, the 24-hour operation of the premises undermined his account, the accident was never reported, and a prior statement he recorded placed the injury at Likoni Ferry. The Court found no reason to disturb that conclusion on re-evaluation of the evidence.

p. 2
02

Jurisdiction under Section 16 of the Work Injury Benefits Act raised in submissions

Holding

The Court declined to make any finding because the Respondent failed to file a cross-appeal and raised the issue only in submissions

Reasoning

The Respondent raised the jurisdictional objection for the first time in written submissions without filing a cross-appeal, depriving the Appellant of an opportunity to respond. The Court held this was procedurally improper and made no finding on the question.

p. 2

Legal principles established

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  • The duty of a first appellate court is to re-consider and re-evaluate the evidence on record and draw its own conclusions, bearing in mind it did not see the witnesses
  • An appellate court will not interfere with an award of damages unless the trial court failed to direct itself properly in law and fact, taking all relevant considerations into account
  • A party who fails to raise a substantive issue properly, such as by way of cross-appeal, cannot have it determined on the basis of submissions alone

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs to the Respondent in this Court and the Court below

Authorities

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Legislation

  • Evidence ActSection 108
  • Work Injury Benefits ActSection 16

Cases cited (6)

  • Kenya Ports Authority v Kuston Kenya Limited
    [2009] eKLR
  • Abok James Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Statpack Industries v James Mbithi Munyao
    [2005] eKLR
  • Treadsetters Tyres Ltd v John Wekesa Wepukhulu
    [2010] eKLR
  • Lazarus Muthama Kamota v Kinatwa Co-operative Savings & Credit Society Limited
    [2018] eKLR
  • Printing Industries Limited & another v Bank of Baroda
    [2017] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
SPMCC No. 1062 of 2017
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the magistrates' court decision

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, "Richard Makori Nyambuku v Dodwell & Company East Africa Limited [2019] KEELRC 147 (KLR)", Case Analysis (2019). ELRC Appeal from Mombasa SPMCC No. 1062 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/147/eng@2019-12-11

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