Ogembo Tea Factory Ltd v Peterson Omwoma Rosana [2020] KEELRC 515 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Time bar under section 90 of the Employment Act 2007 read with section 4(2) of the Limitation of Actions Act
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.
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.
Liability for workplace injury
100% liability as found by the trial magistrate was upheld; the trial court did not misdirect itself in evaluating the evidence.
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.
Quantum of damages
The award of Kshs. 350,000 general damages and Kshs. 6,500 special damages was not disturbed.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed in its entirety
- 2.Upheld the award of Kshs. 350,000 in general damages and Kshs. 6,500 special damages to the respondent
- 3.Appellant to meet the costs incurred before the trial court and this court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.