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ELRCDismissedAppeal No. 12 of 2018 (Formerly Nakuru High Court Appeal No. 148 of 2007)· [2019] KEELRC 1916 (KLR)

Kipkebe Limited v Joseph Ondari Mosomi [2019] KEELRC 1916 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
17 January 2019
2,146 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 confirmed an employer must pay a tea plucker injured by a hidden hole, keeping the Ksh.50,000 award intact.

What this practically means

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Executive summary

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This was a first appeal, transferred from the High Court at Nakuru to the Employment and Labour Relations Court at Nakuru, against the judgment and decree of Hon. A.G. Kibiru, Senior Resident Magistrate, Sotik, in Sotik SRMCC No. 178 of 2004. The respondent, a tea plucker employed by the appellant, claimed he was injured on 11th December 1999 when he stepped into a hole concealed by tea bushes at Magura Estate. The trial court found the appellant liable and apportioned liability at 20:80%, awarding general damages of Ksh.50,000.00 subject to a 20% reduction. The appellant appealed on six grounds, contending that the respondent failed to prove the accident occurred, that the trial court shifted the burden of proof contrary to section 107(1) of the Evidence Act, that negligence was not established, and that the damages award was excessive for soft tissue injuries. The respondent maintained the case was proved on a balance of probability, relying on the treatment chit from Kericho District Hospital and an unchallenged medical report by Dr Ajuoga. Guided by the principles governing a first appeal, the court re-evaluated the evidence. It found the treatment chit issued on 12th December 1999 placed the respondent at the appellant's premises, that the evidence of the supervisor's alleged retirement was unsupported, and that the tea bush canopy hid the hole from the respondent. The court affirmed the finding on the employer's breach of the duty to provide a safe work environment, upheld the apportionment of liability, and found the quantum fair and reasonable. The appeal was dismissed in its entirety, with each party bearing own costs due to the delays through no fault of either party.

Key legal issues

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01

Whether the respondent was injured while at work with the appellant on 11th December 1999

Holding

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

Reasoning

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.

p. 2
02

Whether liability in negligence was properly established against the employer

Holding

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

Reasoning

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.

p. 3
03

Whether the award of general damages of Ksh.50,000.00 was excessive

Holding

The court found the award fair and reasonable and declined to interfere with quantum

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed in its entirety
  2. 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. 3.Each party shall bear own costs

Authorities

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Legislation

  • Evidence Actsection 107(1)

Cases cited (8)

  • Wareham t/a Wareham & 2 Others versus Kenya Post Office Savings Bank
    [2004] eKLR
  • Statpack Industries versus James Mbithi Munyao
    Civil Appeal No.152 of 2003
  • Ogembo Tea Factory Co. Ltd versus Evans Nyabuto Bichanga
    [2017] eKLR
  • Makala Mailu Mumende virus Nyali Golf Club
    [1991] KLR
  • Sielle versus Associated Motor Boat Company Ltd
    [1968] EA
  • Abdul Hammed Sarif versus Ali Mohammed Solan
    [1955] 22 EACA
  • Timsales Ltd versus Stanley Njehia Macharia
    Nakuru Civil Appeal No.148 of 2005
  • Mumias Sugar Company Ltd Versus Charles Namatiti
    CA 151/87
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

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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 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.