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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1531 (KLR)

Kipkebe Limited v Clinton Mongare Laboso [2019] KEELRC 1531 (KLR)

Employment and Labour Relations Court
20 May 2019
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a tea picker's injury award, ruling employers lose when they fail to produce their own records or call the maker of key documents.

What this practically means

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Executive summary

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This is a first appeal against a magistrate's decision of 15th December 2010 awarding damages to a tea picker injured on 13th January 2009 while picking tea at Kericho, when he fell into a hole in the plantation and dislocated his right knee. The respondent alleged negligence in the failure to provide gumboots and to warn of hidden holes. The appellant contended that the respondent's contract had expired on 8th January 2009 and that he was not at work on the material day, relying on clerk DW1's evidence and on hospital records showing he was not among patients attended to. The magistrate found the existence of the hole undisputed, accepted the medical evidence of Dr. Ajuoga, and apportioned liability at 30:70% in the claimant's favour. Mathews N. Nduma J found DW1's testimony discredited because he was not the maker of the patients' records and Evans Momanyi, who made the entries, was not called to testify. The court found no misdirection of law or fact warranting interference with the award, which was benchmarked against the awards in Dorcas Anyango vs Charles A. Akello and Sokoro Saw Mill Ltd vs Grace Nduta Ndungu. The only correction was to clarify that the Kshs 120,000 general damages was the 100% figure, so the appellant was liable for 70% (Kshs 84,000), plus Kshs 6,500 special damages, with costs of both courts.

Key legal issues

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01

Proof of the workplace injury on 13th January 2009

Holding

The claimant proved he was at work and injured, falling into a hole in the plantation without protective gear

Reasoning

The pay slips for December 2008 and January 2009 corroborated continued employment; 13th January 2009 was admitted to be a working day; the appellant did not produce its records for that day or the claimant's contract; the existence of the hole was undisputed. The treatment card from Keritos hospital was produced after notice and by leave of the court.

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02

Credibility of the defence hospital-records evidence

Holding

DW1's and DW2's evidence was disregarded because the person who made the entries was not called

Reasoning

DW1 admitted he did not make the patients' records for the material day, and Evans Momanyi, said to have made the entries, was not called to testify. DW2 similarly admitted he did not keep the patients' records on the day in question. The lower court's disregard of that testimony was justified.

p. 2
03

Apportionment of liability and the quantum of general damages

Holding

Liability of 30:70% against the claimant stands; the Kshs 120,000 general damages is the 100% figure, so the appellant pays 70% (Kshs 84,000)

Reasoning

The magistrate compared awards in Dorcas Anyango vs Charles A. Akello (Kshs 250,000) and Sokoro Saw Mill Ltd vs Grace Nduta Ndungu (Kshs 40,000 plus Kshs 120,000 for a healed injury without permanent disability) and did not err. The only ambiguity was whether Kshs 120,000 was the 70% portion or the 100% figure; the court resolved it as the 100% figure to be shared 30:70%.

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Legal principles established

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  • Where the maker of contemporaneous records is not called to testify, the evidence of a witness who did not make the records may be discredited
  • An appellate court will not interfere with a first instance award of damages absent a misdirection of law or fact

Court orders

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  1. 1.Uphold the decision of the court a quo
  2. 2.Judgment entered as against the respondent/appellant for Kshs 84,000 being 70% of Kshs 120,000
  3. 3.Kshs 6,500 special damages
  4. 4.Costs before this court and the court below

Authorities

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Cases cited (2)

  • Dorcas Anyango vs Charles A. Akello
    Nairobi HCC No. 1514 of 1991
  • Sokoro Saw Mill Ltd vs Grace Nduta Ndungu
    NKR HCC No. 99 of 2003
On appeal from
Magistrate's Court (Learned Magistrate Hon. Were)
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the decision of the magistrate's court (statutory appeal; no specific provision quoted in the judgment)

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, "Kipkebe Limited v Clinton Mongare Laboso [2019] KEELRC 1531 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1531/eng@2019-05-20

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