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ELRCDismissedNot stated in the judgment· [2020] KEELRC 515 (KLR)

Ogembo Tea Factory Ltd v Peterson Omwoma Rosana [2020] KEELRC 515 (KLR)

Employment and Labour Relations Court
17 September 2020
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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An employer's appeal against a worker's injury compensation failed because it waited too long to challenge the court's permission to file the late claim.

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 Kisumu, transferred from the High Court at Kisii by Majanja J on 12th June 2018, against a judgment of the trial magistrate delivered on 17th May 2017. The respondent, while sorting tea leaves in the appellant's premises on 13th February 2003 in the course of employment, was cut by a trolley and sued in tort for general damages, costs and interest by plaint dated 11th May 2010, having obtained leave on 17th December 2009 to file out of time. After an initial ex parte judgment set aside by consent, the suit proceeded to full trial, ending with 100% liability against the appellant, general damages of Kshs. 350,000 and special damages of Kshs. 6,500, with costs to follow the event. The single main issue was whether the suit was time barred under section 90 of the Employment Act 2007 read with section 4(2) of the Limitation of Actions Act. The court held the time bar argument failed on two grounds: the 2009 order enlarging time was never appealed and its reasons were not before the court; and the cause of action arose in 2003, before the Employment Act 2007 was enacted, so section 90 was inapplicable. Applying Selle v Associated Motor Boat Co Ltd, the court re-evaluated the evidence and found no misdirection on liability and no error in the assessment of damages. The appeal was dismissed in its entirety, the award upheld, and the appellant ordered to meet costs before both courts. Judgment was delivered online pursuant to COVID-19 directives.

Key legal issues

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01

Time bar under section 90 of the Employment Act 2007 read with section 4(2) of the Limitation of Actions Act

Holding

The time bar argument failed: leave to file out of time was granted in 2009 and was not appealed; and section 90 of the Employment Act 2007 does not apply to a cause of action arising in 2003, before the Act was enacted.

Reasoning

The plaintiff obtained leave of court on 17th December 2009 to file suit out of time, the suit being founded on tort. The order was on page 43 of the record of appeal. The appellant never appealed that ruling and the record of the miscellaneous application containing the magistrate's reasons is not before the court, so the matter cannot be reopened. Further, the tort claim arose in February 2003, pre-dating the Employment Act 2007, so section 90 was inapplicable. The appellant could not raise the issue years later.

p. 1
02

Liability for workplace injury

Holding

100% liability as found by the trial magistrate was upheld; the trial court did not misdirect itself in evaluating the evidence.

Reasoning

The court re-evaluated the evidence of the three witnesses called by the plaintiff/respondent and the one witness called by the appellant/defendant, considered the trial magistrate's judgment, and was satisfied there was no misdirection. The correct decision on liability was therefore reached and the appellate court upheld it.

p. 2
03

Quantum of damages

Holding

The award of Kshs. 350,000 general damages and Kshs. 6,500 special damages was not disturbed.

Reasoning

The court found the trial court did not err on the principles applicable in the assessment of damages and found no reason to interfere with the quantum awarded. The appeal against quantum therefore failed alongside the liability and limitation grounds.

p. 2

Legal principles established

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  • Section 90 of the Employment Act 2007 is not applicable to causes of action that arose before the Act was enacted
  • A party who did not appeal an order enlarging time for filing suit cannot raise the time bar many years later
  • In a first appeal the court has the primary responsibility to re-evaluate and reconsider the evidence and draw its own conclusions

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Upheld the award of Kshs. 350,000 in general damages and Kshs. 6,500 special damages to the respondent
  3. 3.Appellant to meet the costs incurred before the trial court and this court

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act CAP 22 Laws of Kenyasection 4(2); Part III
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure Act (chapter 21 of the Laws of Kenya)section 18
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (1)

  • Selle –VS- Associated Motor Boat Co. Ltd
    (1968) EA 123
On appeal from
Magistrates' Court (judgment delivered 17th May 2017; appeal initially filed at High Court of Kenya at Kisii)
Jurisdiction invoked
First appeal transferred to the Employment and Labour Relations Court at Kisumu by Majanja J on 12th June 2018

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, "Ogembo Tea Factory Ltd v Peterson Omwoma Rosana [2020] KEELRC 515 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/515/eng@2020-09-17

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