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ELRCPartially AllowedCivil Appeal No 539 of 2012 (originally filed in the High Court at Nairobi, transferred to the Employment and Labour Relations Court)· [2020] KEELRC 1 (KLR)

Rushbah Industries Limited v Elijah Seka Owino [2020] KEELRC 1 (KLR)

Employment and Labour Relations Court
2 December 2021
LNLinnet Ndolo
1,292 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a worker's occupational disease award because he failed to prove which workplace substance caused his illness.

What this practically means

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Executive summary

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This was a first appeal, originally filed in the High Court at Nairobi as Civil Appeal No 539 of 2012 and transferred to the Employment and Labour Relations Court by order of B. Thuranira Jaden J on 4th September 2019. It challenged a magistrates' court judgment of 26th October 2015 in which the Respondent, who had worked for the Appellant as a machine operator exposed to black smoke while making nylon paper, was awarded general damages of Kshs. 750,000 and special damages of Kshs. 7,455 for an occupational respiratory disease. The Appellant's seven grounds attacked both liability and quantum. On liability, Linnet Ndolo J, applying the first appellate duty in Selle v Associated Motor Boat Company Ltd, held that the trial court had proceeded on wrong principles: in an occupational disease claim it is not enough to prove employment and disease; the claimant must establish a nexus between the disease and a specific substance at the workplace, supported by expert evidence beyond a medico-legal report, as reflected in Lamorna Limited v Hannah Waruguru Macharia which the Appellant had cited. The trial magistrate had not addressed this issue despite it being raised in written submissions. On quantum, applying the Kemfro Africa principles, the court found no error in the award but held the question moot. The appeal succeeded: the trial judgment and award were set aside and the claim dismissed, with each party bearing their own costs in light of the past employment relationship.

Key legal issues

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01

Causation in occupational disease claims

Holding

The trial court erred by not requiring expert evidence linking the alleged ailment to a specific harmful substance at the workplace; the appeal succeeded on liability

Reasoning

The court held that an occupational disease claim requires more than proof of employment and disease. Following Lamorna Limited v Hannah Waruguru Macharia, the claimant must identify the specific harmful substance and adduce expert evidence linking it to the ailment, beyond a medico-legal report. The trial magistrate failed to address this issue despite it being raised in submissions, and therefore proceeded on wrong principles, arriving at an erroneous decision on liability.

p. 2
02

Quantum of damages

Holding

The award of Kshs. 750,000 in general damages disclosed no error warranting interference, but the question became moot after liability was overturned

Reasoning

Applying the Kemfro Africa principles, an appellate court may disturb quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or where the amount is inordinately low or high. The court found no such error. However, since the appeal succeeded on liability, the quantum issue fell away as moot.

p. 3

Legal principles established

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  • In an occupational disease claim, proof of employment and occurrence of disease is not enough; the claimant must establish a nexus between the disease and a specific substance at the workplace, supported by expert evidence beyond the medico-legal report
  • The burden to prove causation is not diminished by the failure of the defence to call witnesses
  • The duty of a first appellate court is to reconsider and re-evaluate the evidence and draw its own conclusions

Court orders

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  1. 1.The appeal succeeds
  2. 2.The judgment and award by the learned trial Magistrate is set aside and replaced with an order dismissing the claim
  3. 3.Each party to bear their own costs

Authorities

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Cases cited (3)

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Lamorna Limited v Hannah Waruguru Macharia
    [2015] eKLR
  • Kemfro Africa Limited T/A Meru Express Services (1976) & another v Aziri Kamu mudika Lubia & another
    [1985] eKLR
On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
First appellate jurisdiction transferred from the High Court to the Employment and Labour Relations Court by order of B. Thuranira Jaden J dated 4th September 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rushbah Industries Limited v Elijah Seka Owino [2020] KEELRC 1 (KLR)", Case Analysis (2021). Civil Appeal No 539 of 2012 (originally filed in the High Court at Nairobi, transferred to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1/eng@2020-12-02

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