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ELRCPartially AllowedAppeal No. 20 of 2018 (Formerly Nakuru High Court Civil Appeal No. 119 of 2016)· [2019] KEELRC 2574 (KLR)

Lomolo (1962) Limited v Juma Oduor [2019] KEELRC 2574 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
25 April 2019
1,441 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 threw out a workplace injury award because the worker never actually proved his employer was negligent.

What this practically means

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Executive summary

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This was an appeal by Lomolo (1962) Limited against the judgment and decree of Hon. Kisera, Principal Magistrate, Eldama Ravine, delivered on 27th September 2016 in PMCC No. 15 of 2014, in which the respondent, Juma Oduor, had successfully sued for injuries allegedly sustained on 25th January 2013 while carrying sisal at the appellant's farm, falling into a concealed hole. The trial court found an employment relationship, liability in negligence, and assessed damages at Ksh. 80,000 plus special damages. The appeal, raised on seven grounds, challenged the finding of liability without supporting evidence, the finding of negligence though none was pleaded or particularised, the absence of an employment relationship, and proof of the case to the required standard. The respondent, though served and given an extension of 21 days to file submissions, did not participate; the appeal proceeded unopposed but was considered on its merits. M. Mbaru J re-evaluated the trial court's judgment as required of a first appellate court and held that negligence and breach of statutory duty must be pleaded and particularised before liability can be found and quantum assessed, applying Dare v Pulham and John Gachanja Mundia. The court held that not every workplace injury results from employer negligence, that the respondent's testimony never established how the appellant was negligent, and that proof of damages is an essential element of the tort of negligence. The trial court's findings on liability and damages were held erroneous and without legal foundation. The appeal was allowed, the lower court's orders set aside, and costs of the appeal awarded to the appellant.

Key legal issues

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01

Pleading and proof of negligence in a workplace injury claim

Holding

Negligence and breach of statutory duty must be pleaded and particularised before the court can make a finding on liability and assess quantum

Reasoning

The court, as a first appellate court, re-evaluated the lower court's judgment and found the respondent never set out how the appellant was negligent or in breach of any duty, as such matters were not pleaded. Relying on Dare v Pulham, the court held pleadings define issues and give the defendant fair notice. Without particulars of negligence, the trial court could not infer liability or assess damages.

p. 2
02

Proof of damages as an element of the tort of negligence

Holding

Proof of damages is an essential element of negligence; failure to prove damages defeats the claim

Reasoning

The respondent's testimony that he fell while carrying sisal ended without establishing any negligence or breach by the appellant, because such matters were not pleaded. The court held the measure of damages must be adjudged from the effect of breach of the employer's duty of care, and since no negligence or statutory breach was pleaded or proved, the respondent failed to prove his loss.

p. 2
03

Employer-employee relationship and liability

Holding

Liability in a workplace injury claim presupposes an established employment relationship and proved breach; the trial court's findings lacked legal foundation

Reasoning

The appellant contended, relying on Timsales Limited v Noel Agina Okello, that without an employer-employee relationship findings on liability were unjustified, and that the muster roll kept under section 9 of the Work Injury Benefits Act, 2007 did not include the respondent. The court found the trial court's findings on liability and damages had no legal foundation on the evidence.

p. 2

Legal principles established

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  • Pleadings furnish a statement of the case, define the issues for decision, and enable relevance and admissibility of evidence to be determined at trial
  • To prove negligence a claimant must prove a duty of care, breach of that duty, and loss and damage resulting from the breach
  • Not every injury occurring at work results from the employer's negligence or statutory breach

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders of the lower court in Eldama Ravine PMCC No. 15 of 2014 are set aside
  3. 3.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Work Injury Benefits ActSection 9

Cases cited (6)

  • Timsales Limited versus Noel Agina Okello
    [2014] eKLR
  • Statpack Industries versus James Munyao
    Nairobi HCCA No. 192 of 2003
  • Dare versus Pulham
    (1982) 148 C.L.R. 658
  • John Gachanja Mundia versus Francis Muriira & Another
    [2017] eKLR
  • Brite Print (K) Ltd & George Maina Kingori versus Barclays Bank (K) Ltd
    NRB HCCC No. 657 of 2006 [2014] eKLR
  • Eric Omuodo Ounga versus Kenya Commercial Bank Limited
    [2017] eKLR
On appeal from
Principal Magistrate's Court, Eldama Ravine
Eldama Ravine PMCC No. 15 of 2014
Jurisdiction invoked
Appeal from the judgment and decree of the Principal Magistrate, Eldama Ravine, transferred to the Employment and Labour Relations Court (formerly Nakuru High Court Civil Appeal No. 119 of 2016)

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, "Lomolo (1962) Limited v Juma Oduor [2019] KEELRC 2574 (KLR)", Case Analysis (2019). Appeal No. 20 of 2018 (Formerly Nakuru High Court Civil Appeal No. 119 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2574/eng@2019-04-25

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