Hela Intimates EPZ Limited v Linos Ngorere Okuyu [2019] KEELRC 924 (KLR)

The appellant failed to produce employment records for the period of injury, and the supervisor named by the respondent (Philip) was not called as a witness. The respondent's evidence that he started working in April 2016 was not controverted; no questions on the date of employment or injury were put in cross-examination. The defence plea of trespass was contradicted by its own admission of salary payments. The balance of probability therefore favoured the respondent, and the appellate court saw no misdirection in the trial magistrate's findings.

The trial court's extract shows DW1 admitted the plaintiff used to work for the respondent and gave an unconvincing explanation (failure to clock the machine) for absence of records of the injury. The respondent explained that the clock-in machine could fail. The appellate court found on the same evidence that the trial magistrate did not misdirect himself in finding the injury occurred in the course of employment, and that the decision was supported by the evidence and submissions on record.

The suit was filed on 13 February 2017, when section 16 of WIBA had been nullified by the High Court in Petition No. 185 of 2008, which judgment allowed suits already filed to continue. The Court of Appeal reinstated WIBA (save sections 7 and 10(4)) only on 17 November 2017, after filing and after the plaintiff's evidence. Crucially, the appellant admitted jurisdiction in paragraph 13 of its defence and never objected during the hearings. Jurisdiction could not be raised for the first time on appeal.

The court accepted the respondent's submission that the appellant's submissions, filed on 14 March 2018, were not placed on record because the appellant was unrepresented at the mention that day. The trial magistrate considered only the submissions present in the court file. The appellate court held it was unfair for the appellant to fault the trial court without explaining why its submissions were not on record.

The appellant only asserted that the injuries were minor and soft tissue in nature and the award excessive. Applying the principle in Bashir Ahmed Butt v Uwais Ahmed Khan, an appellate court will not interfere with quantum unless it is shown the award is inordinately high or low. The appellant led no such demonstration, so the trial magistrate's award of Kshs.180,000 general damages and Kshs.3,000 special damages stood.