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ELRCDismissedNot stated in the extract (appeal from a workplace injury suit; Memorandum of Appeal filed 2 February 2019)· [2020] KEELRC 983 (KLR)

P J Dave Flowers Ltd v Kennedy Sanane Mabonga [2020] KEELRC 983 (KLR)

Employment and Labour Relations Court
29 May 2020
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 Nairobi against a magistrates' court judgment of 29 September 2018 in which P. J. Dave (Appellant) was found fully liable for injuries sustained by Kennedy Sanane Mabonga (Respondent) at the workplace on 27 April 2015 and general damages of Kshs 150,000/- were awarded. Radido Stephen J heard the appeal, in which the Appellant condensed its ten memorandum grounds into two issues: proof of liability and quantum. On liability, the Respondent testified that he fell from a height while removing a hanging net from a greenhouse ventilation and blamed the Appellant for not providing a ladder; the supervisor, absent at the time of the fall, did not confirm or deny provision of a ladder. The Court held that an employee working from a height logically required a ladder and found no error in the finding of 100% liability. On quantum, the Court deprecated the trial court's failure to set out the authorities informing the award, but found the authorities cited by the parties before the trial court not comparable, and observed that in an adversarial system the court is not obliged to research authorities for the parties. On appeal, the Appellant cited no case law and did not discharge the burden of showing the award erroneous or manifestly excessive. The Court re-affirmed the trial court's judgment on both liability and quantum, dismissed the appeal with costs, the judgment being delivered through Microsoft Teams/email in Nairobi on 29 May 2020.

Key legal issues

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01

Liability for the workplace accident

Holding

The Appellant was fully liable because it failed to provide a ladder to the Respondent who was working at a height; the trial court's finding involved no error of fact or law.

Reasoning

The Respondent testified that he fell from a height while removing a hanging net from a greenhouse ventilation and blamed the Appellant for not providing a ladder. The supervisor, who was not present at the fall, only confirmed that safety equipment had been issued and neither confirmed nor denied that a ladder had been provided. Given work at height, provision of a ladder was logical; hence full liability was properly established.

p. 2
02

Quantum of general damages of Kshs 150,000/-

Holding

The Court declined to interfere with the award because the authorities cited by the parties were not comparable and the Appellant, on appeal, cited no case law and failed to show the award was manifestly excessive.

Reasoning

The Court noted that the trial court had not mentioned any of the authorities cited by the parties, a practice it deprecated. On re-examining the authorities, it found none comparable to the injuries (lacerations on the arm and loin and a blunt back injury). Since the Appellant discharged no burden of showing the award erroneous or excessive, the award stood.

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Role of a first appellate court

Holding

The Court is duty-bound to re-evaluate and assess the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses.

Reasoning

Relying on Kamau v Mungai (2006) 1 KLR 150, the Court restated the classic role of a first appellate court: re-evaluation of the evidence and independent conclusions, subject to the interdict flowing from not having observed witness demeanour.

p. 2

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for the fact that it did not see or hear the witnesses.
  • Allegations of negligence must be strictly proved, and an employer must provide equipment (such as a ladder) appropriate to work performed at a height.
  • A trial court should set out the relevant comparable case law informing an award of general damages; it is not the court's obligation to research authorities for the parties in an adversarial system.
  • An appellate court will not interfere with a trial court's award of damages where the appellant fails to demonstrate that the award was erroneous or manifestly excessive.

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent
On appeal from
Magistrates' Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (statutory appeal; specific provision not stated in the judgment)

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, "P J Dave Flowers Ltd v Kennedy Sanane Mabonga [2020] KEELRC 983 (KLR)", Case Analysis (2020). Not stated in the extract (appeal from a workplace injury suit; Memorandum of Appeal filed 2 February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/983/eng@2020-05-29

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