Kipkebe Limited v Joseph Ondari Mosomi [2019] KEELRC 1916 (KLR)
The bottom line
#Kenya's Employment Court confirmed an employer must pay a tea plucker injured by a hidden hole, keeping the Ksh.50,000 award intact.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was injured while at work with the appellant on 11th December 1999
The court affirmed the trial court's finding that the respondent was injured at work, relying on the treatment chit issued on 12th December 1999 and the unchallenged medical report by Dr Ajuoga
The court re-evaluated the evidence and found the respondent's testimony, showing he was placed in a new area on his first day and fell into a hole concealed by the canopy of tea bushes, credible. The treatment chit issued a day after the alleged accident placed him at the appellant's premises. The evidence of the check roll showing he worked the whole day did not disprove injury, and the alleged retirement of the supervisor on 28th August 1998 was unsupported by any evidence.
Whether liability in negligence was properly established against the employer
The court affirmed that there was a breach of the employer's duty to provide a safe work environment, with liability apportioned at 20:80% for the respondent's contribution
The employer placed the respondent in a new field where a hole left from uprooted stumps was hidden by tea bushes; the respondent could see what he plucked but not where he stepped. The court held the trial court applied the requisite threshold and did not act on any wrong principle, finding the employer liable for the work injury while upholding the trial court's apportionment for the respondent's contribution.
Whether the award of general damages of Ksh.50,000.00 was excessive
The court found the award fair and reasonable and declined to interfere with quantum
The appellant contended the award should have been Ksh.30,000.00 for soft tissue injuries. The court found the trial magistrate did not act on any wrong principle of law on the facts and that the assessment of quantum was fair and reasonable, so no basis existed to disturb the award, which was subject to the 20% reduction for contributory negligence.
Legal principles established
#- An employer is required by law to provide safe working conditions and is responsible for accidents occurring in the course of employment, and must compensate the injured employee
- On a first appeal the appellate court is not bound by the findings of the trial court, and where the trial court failed to take into account a materially relevant matter, the appellate court may intervene
- Failure to produce treatment cards does not always lead to dismissal of injury claims where the doctor who later examines the claimant makes reference to the treatment card
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment and decree of the trial court (liability 20:80% and general damages of Ksh.50,000.00 less 20%) is upheld
- 3.Each party shall bear own costs
- On appeal from
- Senior Resident Magistrate's Court, Sotik
- Sotik SRMCC No. 178 of 2004
- Jurisdiction invoked
- Appeal transferred to the Employment and Labour Relations Court by the High Court under its transferred jurisdiction (formerly Nakuru High Court Appeal No. 148 of 2007); first appeal from the subordinate court's judgment and decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkebe Limited v Joseph Ondari Mosomi [2019] KEELRC 1916 (KLR)", Case Analysis (2019). Appeal No. 12 of 2018 (Formerly Nakuru High Court Appeal No. 148 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1916/eng@2019-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.