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ELRCAllowedELRC Appeal No. 60 of 2017 (Formerly Naivasha High Court Appeal No. 66 of 2014)· [2019] KEELRC 1743 (KLR)

Bigot Flowers Limited v Peter Jakoyo Anyango [2019] KEELRC 1743 (KLR)

Employment and Labour Relations Court of Kenya
25 April 2019
2,555 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 overturned a damages award against a flower farm because the injured worker couldn't prove he was still an employee when the accident happened.

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 Nakuru against the judgment and decree of Hon. P. Gesora, Magistrate, delivered on 27th October, 2016 in Naivasha CMCC No. 502 of 2013. The respondent had sued the appellant claiming special and general damages for injuries allegedly sustained on 6th January, 2012 while working as his employee in an industrial accident attributed to the appellant's negligence and breach of statutory duty. The trial magistrate found the appellant liable, apportioned 15% liability to the respondent as a casual employee, and awarded damages. On appeal, the appellant contended there was no causal link between any negligence and the injury, that liability cannot be apportioned without fault, and crucially that the respondent had resigned on 15th September, 2011, left employment on 17th October, 2011, was paid terminal dues, and was never re-employed. The respondent maintained he was re-employed as a casual in December, 2011. Applying Selle v Associated Motor Boat Co. on the first appellate court's duty to re-evaluate evidence, and section 107(1) of the Evidence Act on burden of proof, the court found the trial court's findings unsupported by the pleadings or evidence: the plaint did not plead a fall from a greenhouse, and the muster roll kept under section 9 of the Work Injury Benefits Act, 2007 and unchallenged testimony of the appellant's witnesses established the respondent had left employment. The burden of proving employment and injury at work was not discharged. Allowing the appeal with costs to the appellant, the court set aside the judgment and decree of the lower court.

Key legal issues

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01

Employment on the date of the accident

Holding

The respondent failed to prove he was an employee of the appellant on 6th January, 2012; the evidence, including muster rolls kept under section 9 of the Work Injury Benefits Act, 2007 and unchallenged testimony of the human resource manager, showed he had resigned in 2011 and was never re-employed

Reasoning

The primary evidence of employment is found in the employer's work records. The muster roll for 6th January, 2012, kept in accordance with section 9 of the Work Injury Benefits Act, 2007, did not show the respondent at work. The evidence of Charity Opon and Mureithi Kahero that the respondent resigned and left employment on 17th October, 2011 and was never re-employed was not challenged in any material way.

p. 3
02

Trial court's findings unsupported by pleadings and evidence

Holding

The trial court's finding that the respondent was a casual employee who fell while working on a greenhouse was not supported by the pleadings or evidence; the plaint did not plead a fall from a greenhouse

Reasoning

The plaint merely alleged an industrial accident without particulars. The respondent's testimony gave no material particulars of the circumstances leading to the injury. Findings of fact must rest on material evidence; the trial court's findings on employment and the fall were therefore devoid of any material before the court.

p. 3
03

Burden of proving negligence and causal link

Holding

Without a linkage of employment, the claim failed; the burden on the respondent as the person alleging employment and injury at work was not discharged on a balance of probabilities, and negligence could not be inferred without a causal link

Reasoning

The appellant relied on authority that liability cannot be apportioned without fault and that negligence cannot be inferred without a causal link. There was no evidence enabling a fair conclusion that the accident was caused by the employer's negligence or breach of duty of care, as in Statpack Industries v James Mbithi Munyao.

p. 3

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • Whoever asserts a legal right or liability dependent on facts must prove those facts (burden of proof under section 107(1) of the Evidence Act)
  • A master is not responsible for a wrongful act by his servant unless it is done in the course of employment

Court orders

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  1. 1.The appeal is allowed with costs to the appellant
  2. 2.The judgment and decree of the lower court are set aside

Authorities

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Legislation

  • Occupational Safety and Health Actsection 13(1)
  • Work Injury Benefits Act, 2007section 9
  • Evidence Act, Cap 80 Laws of Kenyasection 107(1)

Cases cited (8)

  • Bonham Carter versus Hyde Park Hotel Ltd
    (1948) 64 T.R.
  • Spin Knit Ltd versus Albus Adwera
    HCCA No.204 of 2002 (Nakuru)
  • Stat pack Industries Ltd versus James Mbithi Munyao
    (2005) eKLR
  • Mohammed Mahmoud Jabane versus Highstone Butty Tongoi Olenja
    Civil Appeal No.2 of 1986
  • Samson Emuru versus Ol Suswa Farm Ltd
    HCCA No.6 of 2003 (Nakuru)
  • Selle versus Associated Motor Boat Co.
    [1968] EA 123
  • Anne Wambui Ndiritu versus Joseph Kiprono Ropkoi & Another
    [2005] 1 EA
  • B W K versus E K & another
    [2017] eKLR
On appeal from
Naivasha Chief Magistrate's Court
Naivasha CMCC No. 502 of 2013
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court (appellate jurisdiction over the magistrate's 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, "Bigot Flowers Limited v Peter Jakoyo Anyango [2019] KEELRC 1743 (KLR)", Case Analysis (2019). ELRC Appeal No. 60 of 2017 (Formerly Naivasha High Court Appeal No. 66 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1743/eng@2019-04-25

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