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ELRCDismissedMemorandum of Appeal dated 4th October 2018 (ELRC, Machakos)· [2020] KEELRC 641 (KLR)

George Muchai Rimui v Heritage Investment Limited [2020] KEELRC 641 (KLR)

Employment and Labour Relations Court
21 May 2020
2,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan driver who lost his leg in a work-related crash lost his appeal because he couldn't prove his employer's negligence caused the accident.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Machakos (Linnet Ndolo J) against the dismissal of a claim by a driver who lost his right lower limb (50% permanent incapacity) in a road traffic accident on 24th February 2013 while transporting loose rims to Uganda for his employer. The trial Magistrate had dismissed the suit with costs, finding the Appellant failed to prove liability. On appeal, the Appellant faulted the finding on liability and the low quantum. The court reiterated the first appellate duty to re-evaluate the evidence, and applied the principle that the plaintiff bears the burden of proving a causal link between negligence and injury, citing Sections 107-109 of the Evidence Act. The Appellant's uncontroverted account of the accident did not establish negligence by the Respondent: he alleged technical defects (defective brakes, extra axle, unfastened cargo) but adduced no technical evidence, while the Respondent's inspection report certified no pre-accident defect. The court also questioned how an allegedly defective vehicle completed the journey from Mombasa to Malaba. New submissions on 'progressive breach of duty' raised for the first time on appeal were rejected as not canvassed at trial. Quantum (Kshs. 1,500,000 general damages, Kshs. 99,058 special damages, Kshs. 70,000 future medical expenses) was left undisturbed absent a wrong principle or an inordinately erroneous award. The appeal was dismissed; in view of the prior employment relationship and the Appellant's evident incapacitation, each party was directed to bear their own costs.

Key legal issues

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01

Liability for the accident

Holding

The Appellant failed to discharge the burden of proving that the Respondent's negligence caused the accident; the trial Magistrate's dismissal on liability was affirmed

Reasoning

The only evidence on causation was the Appellant's own testimony that loose cargo shifted, the trailer pin broke and the brakes failed. He alleged technical/mechanical defects but called no technical evidence, and the inspection report certified no pre-accident defects. The court also questioned how a vehicle in such alleged condition could travel from Mombasa to Malaba, and why a professional driver would accept it. Causation was therefore not proved.

p. 3
02

New matters raised only in appellate submissions

Holding

Progressive breach of duty arguments were a new matter not raised at trial and could not be entertained on appeal

Reasoning

The record did not contain the narration of successive breaches (overloading, failure to fasten cargo, extra axle modification). The court found these were not canvassed at trial, and entertaining them would overreach its mandate as a first appellate court, which is confined to the evidence on record.

p. 3
03

Quantum

Holding

The trial court's hypothetical assessment (Kshs. 1,500,000 general damages, Kshs. 99,058 special damages, Kshs. 70,000 future medical expenses) was left undisturbed

Reasoning

Interference is limited to wrong principles or inordinately low/high awards. The court found no proof of such error and declined to interfere with the award, notwithstanding the failure on liability.

p. 4
04

Standard/burden of proof

Holding

The burden was on the Appellant to prove the particulars of negligence and breach of duty; the trial Magistrate correctly so held

Reasoning

Relying on Statpack Industries v James Mbithi Munyao and Sections 107, 108 and 109 of the Evidence Act, the court agreed that the burden lay on the plaintiff to establish a causal connection between the alleged negligence and the injury on a balance of probability.

p. 3

Legal principles established

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  • On a first appeal, the court must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and rule only on the evidence on record
  • The burden of proof lies on the plaintiff, who must prove a causal link between negligence and injury on a balance of probability; injury per se is not sufficient
  • An appellate court may interfere with an award of damages only where the trial court applied a wrong principle or the award is so inordinately low or high as to be wholly erroneous
  • A party cannot introduce new grounds or theories on appeal that were not canvassed at trial

Court orders

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  1. 1.The appeal is found to be without merit and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Evidence ActSections 107, 108 and 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40

Cases cited (3)

  • Abok Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Company Advocates
    [2013] eKLR
  • Statpack Industries v James Mbithi Munyao
    HC Civil Appeal No 152 of 2003
  • Henry Hidaya Ilanga v Mangena Manayka
    (1967) 1 EA 705
On appeal from
Trial court (magistrates' court, name not stated)
not stated
Jurisdiction invoked
First appeal to this Court (appellate jurisdiction of the Employment and Labour Relations Court over the trial court's judgment); Article 159(2)(d) and Article 40 of the Constitution invoked in the delivery order

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, "George Muchai Rimui v Heritage Investment Limited [2020] KEELRC 641 (KLR)", Case Analysis (2020). Memorandum of Appeal dated 4th October 2018 (ELRC, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/641/eng@2020-05-21

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