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ELRCPartially AllowedAppeal No. 25 of 2018 (formerly Nakuru High Court Civil Appeal No. 117 of 2016)· [2019] KEELRC 1044 (KLR)

Lomolo (1962) Limited v Anam Kwangulei [2019] KEELRC 1044 (KLR)

Employment and Labour Relations Court of Kenya
21 March 2019
MMM. Mbaru
1,880 words in judgment
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The bottom line

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Kenya's Employment Court threw out a worker's injury award because negligence was never properly pleaded and the worker couldn't prove his employer caused the harm.

What this practically means

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Executive summary

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This is a first appeal, transferred from the Nakuru High Court (Civil Appeal No. 117 of 2016) to the Employment and Labour Relations Court at Nakuru, against the judgment of Hon. M. Kasera, Principal Magistrate, in Eldama Ravine PMCC No. 16 of 2014 delivered on 27th September, 2016. The respondent, a casual labourer at the appellant's Lomolo sisal farm, claimed he fell into a hole covered by grass on 1st January, 2013 and sustained soft tissue back injuries. He sued for failure to provide a safe working environment and protective gear, seeking general and special damages. The trial court found he was injured at work and awarded damages including Ksh. 60,000.00. The appellant appealed on six grounds, contending there was no employment relationship, no proof of liability, and that negligence was never pleaded. Only the appellant filed written submissions. The court, per M. Mbaru, J, restated its duty on first appeal to re-evaluate the evidence, citing Selle v Associated Motor Boat Co. Applying Dare v Pulham on the functions of pleadings, it held that negligence must be pleaded and particularised, and that without a finding on liability the award of general damages was unjustified. The court further found fatal contradictions in the respondent's evidence on the date of injury, undermining causation on a balance of probabilities. Allowing the appeal, the court set aside the trial court's judgment and decree with costs to the appellant.

Key legal issues

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01

Pleading of negligence

Holding

The trial court erred in awarding general damages where negligence was not pleaded or particularised

Reasoning

Citing Dare v Pulham on the functions of pleadings, the court held that pleadings define the issues and give the defendant fair notice. Without particulars of negligence, only the pleaded special damages could be in issue, leaving no basis for an award of general damages.

p. 3
02

Causation and proof on a balance of probabilities

Holding

The respondent failed to prove his case on a balance of probabilities because of contradictory evidence on the date of injury

Reasoning

The respondent pleaded injury on 1st January, 2013 but testified and produced medical evidence based on an accident of 25th January, 2013. Relying on Charlesworth & Percy on Negligence and Timsales Ltd v Wilson Libuywa, the court found the contradictions fatal, as evidence of causation must show on a balance of probabilities that the defendant's breach caused the harm.

p. 3
03

Standard of review on first appeal

Holding

The court on first appeal must re-evaluate the evidence and reach its own independent conclusions

Reasoning

Following Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA, the court restated its duty to revisit and analyse the factual details presented at trial while giving allowance for the trial court's advantage of hearing and seeing the witnesses, before reaching its own conclusions on the evidence.

p. 2

Legal principles established

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  • Particulars of negligence must be pleaded; absent a plea of negligence, only special damages as pleaded fall for determination
  • A plaintiff must prove causation on a balance of probabilities before damages can be awarded
  • On a first appeal the court re-evaluates the evidence and arrives at its own conclusions while allowing for the trial court's advantage of hearing the parties

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgement and decree in Eldama Ravine PMCC No.16 of 2014 set aside
  3. 3.Costs of the appeal to the appellant

Authorities

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Legislation

  • Work Injury Benefits ActSection 9

Cases cited (5)

  • Timsales Limited versus Noel Agina Okello
    [2014] eKLR
  • Nandi Tea Estate Limited versus Eunice Jackson Were
    [2006] eKLR
  • Timsales Ltd versus Wilson Libuywa
    [2008] eKLR
  • Selle & Another versus Associated Motor Boat Co. Ltd & Others
    [1968] EA
  • Dare versus Pulham
    (1982) 148 C.L.R. 658
On appeal from
Principal Magistrate's Court, Eldama Ravine
PMCC No. 16 of 2014
Jurisdiction invoked
First appeal transferred from the High Court to the Employment and Labour Relations Court (transferred on 27th September, 2018)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lomolo (1962) Limited v Anam Kwangulei [2019] KEELRC 1044 (KLR)", Case Analysis (2019). Appeal No. 25 of 2018 (formerly Nakuru High Court Civil Appeal No. 117 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1044/eng@2019-03-21

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