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ELRCDismissedAppeal No 63 of 2018· [2020] KEELRC 1532 (KLR)

Gatoka Limited v Immaculate Rwamba [2020] KEELRC 1532 (KLR)

Employment and Labour Relations Court
2 March 2020
1,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its appeal against a Kshs 802,000 award after the court found its own statements contradicted its defence of a worker's eye injury.

What this practically means

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Executive summary

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The Respondent, Immaculate Rwamba, sued Gatoka Ltd before the Thika Magistrates Court for breach of statutory duty/negligence arising from a workplace eye injury sustained on 17 February 2012 when a fellow employee cut a coffee tree. On 10 May 2017 the trial Court found in her favour, awarding general damages of Kshs 800,000 and special damages of Kshs 2,000. The Appellant lodged a Memorandum of Appeal in the High Court, principally challenging the finding that the Respondent was injured at work on her uncorroborated testimony, the alleged contradiction over the identity of Nyambura/Mary Nyambura, the alleged failure to consider the defence evidence, the alleged shifting of the burden of proof, and the alleged failure by the Respondent to meet the standard of proof for want of treatment records from Gatanga Dispensary. The appeal was transferred to the Employment and Labour Relations Court on 26 November 2018. Radido J, re-evaluating the evidence as a first appellate court, upheld the trial Court's findings. The employer's own witnesses had recorded statements on the very day of the alleged injury disowning any injury, while claiming to have become aware of it only the next day - a contradiction that raised credibility concerns and suggested the statements were made in anticipation of litigation. The identity discrepancy over Nyambura was immaterial, the trial Court had in fact considered and discounted the defence evidence, and the absence of Dispensary treatment records did not defeat the Respondent's case since she produced a Thika Level 5 Hospital Patient's Card dated 17 February 2012. The appeal was dismissed with costs to the Respondent in both courts plus interest at court rates from 10 May 2017; the damages awards were undisturbed and deposited monies ordered released to the Respondent's advocates.

Key legal issues

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01

Whether the Respondent was injured in the workplace on 17 February 2012

Holding

Yes - the Court agreed with the trial Court that the Respondent demonstrated she was injured at work

Reasoning

It was not disputed that the Respondent was at work on the material day. The trial Court found the defence statements recorded the same day illogical: the defence claimed the Respondent left work uninjured at 1.00 pm, yet statements disowning any injury were recorded by the employer on that same day. The appellate Court found these statements raised credibility concerns and appeared recorded in anticipation of litigation, and agreed the Respondent proved her injury at work.

p. 3
02

Whether the trial Court's judgment was contradictory on the identity of Nyambura/Mary Nyambura

Holding

No - the discrepancy was immaterial and outweighed by the strong evidence of workplace injury

Reasoning

The Respondent denied knowing Mary Nyambura in cross-examination but admitted a Nyambura cut the coffee tree that injured her. Without the handwritten notes or the benefit of seeing the witnesses, the Court found it probable that Mary Nyambura and Nyambura were different persons. Even if that conclusion was wrong, the strong evidence that the Respondent was injured in the workplace outweighed the identity discrepancy.

p. 3
03

Whether the trial Court failed to consider the Appellant's evidence

Holding

No - the trial Court considered and discounted the credibility of the defence evidence

Reasoning

The Court reviewed the trial proceedings and found the complaint groundless: the trial Court expressly analysed and discounted the defence evidence, notably the unexplained recording of statements on 17 February 2012 disowning injuries the witnesses claimed to have become aware of on 18 February 2012. The credibility assessment was a proper consideration of the defence case, not an omission to consider it.

p. 3
04

Whether the Respondent met the standard of proof without producing treatment records from Gatanga Dispensary

Holding

Yes - failure to produce records from the first facility did not defeat her case

Reasoning

The Respondent testified she was treated at Gatanga Dispensary and referred to Thika Level 5 Hospital. If she was not treated at the Dispensary, logically there would be no records to produce. She produced a Patient's Card issued by Thika Level 5 Hospital dated 17 February 2012. The Court held this satisfied the standard of proof expected of her on a balance of probability.

p. 3

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions reached by the trial court are to stand, giving reasons either way.
  • A first appellate court must consider and evaluate the evidence itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses, and must rule only on the evidence on record.
  • Statements recorded by an employer's witnesses on the very day of the alleged injury, disowning the injury, while the witnesses later claim to have become aware of the injury only the next day, undermine the credibility of the defence and suggest the statements were recorded in anticipation of litigation.
  • Failure to produce treatment records from the first health facility visited does not mean a plaintiff has failed to meet the standard of proof on balance of probability where the plaintiff was referred to another facility and produced a patient's card from the referral facility.

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.The trial Court's findings on general and special damages (Kshs 800,000 general damages and Kshs 2,000 special damages) are not disturbed
  3. 3.The monies deposited in Court to be released to the Respondent's advocate on record
  4. 4.The Respondent to have costs before the trial Court and of the Appeal together with interest at Court rates from 10 May 2017

Authorities

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Cases cited (2)

  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    (2013) eKLR
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    (2009) 2 EA 212
On appeal from
Thika Magistrates Court (transferred to this Court by the High Court on 26 November 2018)
Not stated
Jurisdiction invoked
First appellate jurisdiction exercised by the Employment and Labour Relations Court following transfer of the appeal from the High Court on 26 November 2018 (originating in a workplace injury claim before the Thika Magistrates Court)

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, "Gatoka Limited v Immaculate Rwamba [2020] KEELRC 1532 (KLR)", Case Analysis (2020). Appeal No 63 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1532/eng@2020-03-02

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