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ELRCDismissedCivil Appeal No 13 of 2018· [2020] KEELRC 1385 (KLR)

Samuel Mula Mbindu v Steel Makers Limited [2020] KEELRC 1385 (KLR)

Employment and Labour Relations Court (inferred from the judge and subject matter; not expressly named in the judgment extract)
5 March 2020
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker lost his injury claim because his testimony about where he was treated contradicted his own medical records.

What this practically means

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Executive summary

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This was a first appeal against the dismissal of a personal injury claim. The Appellant, a casual labourer, sued the Respondent for special and general damages for a burn injury to his right hand allegedly sustained on 3rd July 2014 while offloading hot metals from a cutting machine, blaming the Respondent for failing to provide protective gear and supervision. The Respondent denied that the Appellant was injured at work, terming the claim fictitious. The trial court (Hon. L.K Gatheru, RM, judgment delivered by Hon. D.M Ndungi, SRM) dismissed the claim, finding the Appellant had failed to prove injury at work. On appeal, Linnet Ndolo J, guided by the first-appeal duty to re-evaluate the evidence, identified two broad issues: liability and quantum. On liability, the court found that although the trial Magistrate had considered case law on the probative value of unproduced treatment notes, his decision actually rested on the Appellant's contradictory evidence as to the medical facility of first treatment ('Rabai', 'Rabai Health Centre' or 'Rabai Health Demonstration Centre', none matching the treatment notes) and his unexplained departure from the pre-trial agreement to formally produce the treatment notes. Given the Respondent's assertion that the claim was fictitious, the Appellant ought to have gone all out to prove it. The court agreed the Appellant failed to prove injury at work. On quantum, the trial court's hypothetical award of damages (Kshs. 130,000 for pain and suffering and Kshs. 2,000 special damages) was upheld as an exercise of discretion not shown to have been misdirected. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Burden of proof of injury at work where the claim is alleged to be fictitious

Holding

The Appellant failed to discharge the burden of proving that he was injured at work on 3rd July 2014; given the Respondent's assertion that the claim was fictitious, the Appellant was obliged to prove his claim rigorously.

Reasoning

The Appellant gave inconsistent testimony about the medical facility where he was first treated - referring to 'Rabai', 'Rabai Health Centre' or 'Rabai Health Demonstration Centre' - none of which matched the facility in the treatment notes relied upon. He also departed from the pre-trial agreement that the treatment notes would be formally produced, without explanation. In the absence of a credible explanation for the discrepancy, the trial Magistrate could not have decided otherwise.

p. 3
02

Probative value of treatment notes filed but not produced

Holding

The trial Magistrate did not base his decision on failure to produce the treatment notes or to avail corroborative evidence, but on the contradiction as to the medical facility of first treatment; the appeal court endorsed that basis.

Reasoning

Although the trial court considered authorities holding that failure to produce treatment notes is not necessarily fatal to an injury claim, the appellate court found on reading the trial judgment that the dismissal rested on the apparent contradiction regarding where the Appellant was first treated, coupled with the unexplained departure from the pre-trial direction that the maker of the treatment notes be called.

p. 3
03

Quantum of damages - appellate interference

Holding

The hypothetical award of Kshs. 130,000 for pain and suffering and Kshs. 2,000 special damages was within the trial court's discretion and was upheld.

Reasoning

Damages assessment is discretionary and can only be disturbed where the trial court failed to direct itself properly in law and fact. The appellate court, applying that standard, agreed with the hypothetical award made by the trial court, which would have applied had the Appellant established liability.

p. 3

Legal principles established

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  • On a first appeal, the court re-considers and re-evaluates the evidence and draws its own conclusions, bearing in mind it did not see the witnesses
  • An award of damages is an exercise of judicial discretion interferable with only where the trial court failed to direct itself properly in law and fact

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the Respondent

Authorities

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Cases cited (6)

  • Association for the Physically Disabled of Kenya v KUDHEIHA Workers
    [2018] eKLR
  • Abok James Odera T/A Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Timsales Limited v Elijah Macharia
    [2012] eKLR
  • Timsales Limited v Harun Thuo Ndungu
    [2011] eKLR
  • Bigot Flowers (K) Ltd v David Were
    [2016] eKLR
  • Printing Industries Limited & another v Bank of Baroda
    [2017] eKLR
On appeal from
Magistrates' Court (trial before Hon. L.K Gatheru, RM; judgment delivered by Hon. D.M Ndungi, SRM)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (statutory appeal from the trial court's dismissal of a personal injury claim; no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Mula Mbindu v Steel Makers Limited [2020] KEELRC 1385 (KLR)", Case Analysis (2020). Civil Appeal No 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1385/eng@2020-03-05

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