China Jiangxi International [K] Limited v Anthony Wambua David alias Anthony David Mulu [2019] KEELRC 734 (KLR)
The bottom line
#An employer who failed to provide safety equipment lost its appeal against a Kshs. 2 million award to an injured worker.
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 Trial Court erred on liability in apportioning 90% to the Appellant and 10% to the Respondent, including the allegation that the Respondent urinated on the board causing his fall
- 2.Whether the global award of Kshs. 2 million in General Damages was excessive
- 3.Whether the Kshs. 600,000 medical bill paid by the Appellant ought to have been deducted from the award
- 4.Whether the Appeal was competent given the absence of the Decree from the Record of Appeal
Key legal issues
#Liability for workplace injury and apportionment
The Trial Court's finding of 90% liability against the Appellant was sustainable; the Appellant failed to prove the Respondent's alleged urination caused the fall and did not provide a safe work environment including safety belt and guard rails
The court found no clear evidence that the Respondent urinated on the board making it slippery. DW1's testimony was deemed not credible. The Trial Court, having heard the witnesses, was best placed to assess demeanor and truthfulness. The Appellant did not show it provided protective tools such as safety belts, and proper protective equipment would have prevented the fall regardless of the alleged urination.
Quantum of General Damages
The global award of Kshs. 2 million was within the law, supported by medical evidence and comparable authorities, and not exceptionally high
Comparable awards for similar injuries were made over 13 years earlier, and the Respondent had also claimed diminished earning capacity. The Appellant never submitted on quantum at trial, so it had no basis to challenge it on appeal, following the High Court in Daniel Muchemi & another v. Rosemary Kawira Kiambi.
Deduction of medical expenses paid by employer
The Kshs. 600,000 medical payment could not be deducted as it was an obligation under Section 34 of the Employment Act and was never counterclaimed
The sum was not claimed by the Appellant in its pleadings before the Trial Court, and the Trial Court had no ground to grant a remedy not sought. Further, the payment of medical expenses was a statutory employer obligation under Section 34 of the Employment Act 2007, so it could not be offset against general damages.
Competence of the appeal for want of Decree
The absence of the Decree from the Record or Supplementary Record of Appeal was fatal to the Appeal
Relying on the High Court decision in Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo, the court adopted the position that failure to include the Order or Decree from which the appeal arises is fatal to the appeal. No Decree appeared in either the Record or Supplementary Record of Appeal.
Legal principles established
#- An appellant cannot challenge quantum on appeal where it made no submission on quantum at trial
- Failure to include the Order or Decree from which an appeal arises is fatal to the appeal
- Under Section 34 of the Employment Act 2007 the employer must provide sufficient and proper medicine and, where possible, medical attendance during serious illness
Court orders
#- 1.The Appeal is declined.
- 2.Costs to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kilifi
- SPMCC No. 29 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from subordinate courts (Memorandum of Appeal filed 5th November 2018)
Relief refused
#Appellant's prayer to allow the Appeal
No sustainable grounds of appeal on either liability or quantum; failure to include the Decree was fatal to the Appeal
Costs
Costs to the Respondent.
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.
IN SUM, IT IS ORDERED: a) The Appeal is declined. b) Costs to the Respondent.
There are no sustainable Grounds of Appeal, both on liability and quantum of damages.
failure to include the Order or Decree, from which the Appeal arises, is fatal to the Appeal
The Appellant did not show that it provided the Respondent with a safe and secure work environment.
There is no basis to challenge quantum on Appeal, while there was no submission made on quantum at the Trial Court, by the Appellant.
Issues in the judgment
#Citation for Sospine Co. Limited & Another v. Daniel Ng'ang'a not indicated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Jiangxi International [K] Limited v Anthony Wambua David alias Anthony David Mulu [2019] KEELRC 734 (KLR)", Case Analysis (2019). (E&LRC appeal, Memorandum of Appeal filed 5th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/734/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.