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ELRCDismissedCivil Appeal No 58 of 2019 (formerly Civil Appeal No 24 of 2017, High Court at Mombasa)· [2020] KEELRC 513 (KLR)

Godfrey Adinda Okello v Tarmal Wire Products Limited [2020] KEELRC 513 (KLR)

Employment and Labour Relations Court
17 September 2020
LNLinnet Ndolo
1,407 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 confirmed that an injured worker must prove their employer's negligence caused the injury, even if the employer presents no defence evidence.

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 Mombasa against the judgment of Hon. Nathan S. Lutta, SPM, delivered on 25th January 2017, dismissing a claim for workplace injuries. The Appellant, a casual labourer, pleaded that on 4th October 2015, while loading iron steel from a truck into a go-down as instructed by his supervisor, the sliding gate of the go-down pressed his right hand, causing serious injury. He attributed the accident to the Respondent's negligence, including failure to provide safety gear, supervision and a proper system of work. The Respondent denied employment, denied the accident, and accused the Appellant of contributory negligence. The trial Magistrate found the Appellant negligent and in full control of the sliding gate, and dismissed the suit. On appeal, Linnet Ndolo J, as the first appellate court, reconsidered and re-evaluated the evidence. She held that the Appellant made extensive accusations of negligence but tendered no supporting evidence and did not exonerate himself from the contributory negligence allegations. The court applied the principle that the burden of proving a causal link between injury and negligence rests on the plaintiff, and that this burden does not diminish merely because the defendant calls no witnesses. The Appellant also did not challenge the trial court's hypothetical assessment of damages, and the court declined to interfere with it. The appeal was dismissed with no order as to costs, each party bearing their own costs in view of the past relationship between the parties.

Key legal issues

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01

Liability for the workplace accident

Holding

The appeal on liability was dismissed; the Appellant failed to prove the Respondent's negligence or causation on a balance of probability

Reasoning

The Appellant pleaded extensive particulars of negligence but led no evidence to support them, and did not rebut the allegations of contributory negligence raised in the Defence. The trial Magistrate found the Appellant was in full control of the sliding gate and pushed it himself. On re-evaluation, the first appellate court agreed that the case was not proved.

p. 3
02

Effect of the Respondent's failure to call witnesses

Holding

The Respondent's failure to call witnesses did not shift or discharge the burden of proof from the Appellant

Reasoning

Although the Appellant made much of the fact that the Respondent tendered no primary evidence, the court held that the plaintiff's evidential burden remains regardless of the defendant's silence. The burden of proving a causal link between injury and alleged negligence rests on the plaintiff.

p. 2
03

Quantum of damages

Holding

The trial court's hypothetical assessment of damages was left undisturbed

Reasoning

The Appellant did not impugn the damages award in the Memorandum of Appeal. Applying the principle in Butt v Khan, the court found no basis to interfere with the award.

p. 3

Legal principles established

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  • The failure of a defendant to call witnesses does not diminish the plaintiff's evidential burden of proving their case
  • In a negligence action, the burden of establishing a causal link between the plaintiff's injury and the defendant's negligence falls upon the plaintiff
  • A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see the witnesses
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Cases cited (5)

  • Kenya Ports Authority v Kuston Kenya Limited
    [2009] eKLR
  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Statpack Industries v James Mbithi Munyao
    [2005] eKLR
  • Treadsetters Tyres Ltd v John Wekesa Wepukhulu
    [2010] eKLR
  • Butt v Khan
    (1982-1988) 1 KAR, 1
On appeal from
Senior Principal Magistrate's Court (Mombasa)
Jurisdiction invoked
First appellate jurisdiction transferred from the High Court at Malindi following a determination by Nyakundi J that the High Court lacked jurisdiction

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, "Godfrey Adinda Okello v Tarmal Wire Products Limited [2020] KEELRC 513 (KLR)", Case Analysis (2020). Civil Appeal No 58 of 2019 (formerly Civil Appeal No 24 of 2017, High Court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/513/eng@2020-09-17

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