Hamwe Limited v Isaac Nyaacha Bwekeria [2020] KEELRC 1891 (KLR)
The bottom line
#Kenya's Employment Court threw out a workplace injury award because the worker couldn't prove his accident actually happened with solid records.
What this practically means
#Executive summary
#Key legal issues
#Proof of injury in the course of employment
The respondent failed to prove injury on 22nd December 2012; the sick sheet and accident register bore no record of him, and the treatment note and hospital card post-dated his employment
The court re-evaluated the exhibits on a first appeal. Exhibit 4, the sick sheet, did not bear the respondent's name or details, and the hospital card was issued on 12th February 2013, after he left employment on 23rd January 2013. The medical history relied on by the doctor was unsupported by primary records, so the causal link was not established.
Liability in negligence
The finding of 100% liability against the appellant was erroneous and unsupported by evidence
Without proof of the accident and injury, negligence could not be established. The appellant's witness confirmed the respondent was issued with protective apparel, and the muster roll and accident register contained no entry of injury on the material date. The trial court's finding was therefore against the weight of the evidence.
Admissibility of documents under section 35 of the Evidence Act
The court found the documents relied upon did not prove injury, aligning with the appellant's objection that makers of documents must be produced for cross-examination
The appellant contended the treatment note and medical report were admitted without compliance with section 35 of the Evidence Act, relying on Kenneth Nyaga Mwige v Austin Kiguta. The court's own re-evaluation found no primary records supporting the injury, making the point of admissibility largely subsumed in the failure of proof.
Statutory remedy under the Work Injury Benefits Act, 2007
Work injury claims after 27th December 2007 ought to be addressed to the Director under the Act, with appeal to the Industrial Court under sections 52(1) and (2)
The court noted that WIBA provides for compensation for work-related injuries and requires such claims to be reported to the Director, citing the Supreme Court decision in Law Society of Kenya v the AG & COTU. The respondent ought to have pursued his claim under that regime rather than by plaint.
Legal principles established
#- The onus of proof is on he who alleges, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence
- In a first appeal, the court must re-evaluate the evidence and arrive at its own independent decision while allowing for the fact that it did not see or hear the witnesses
- A claimant alleging breach of statutory duty must prove that the statutory duty was breached and that the breach caused his loss
Court orders
#- 1.The appeal is allowed
- 2.The judgment in Naivasha CMCC No. 183 of 2013 is set aside
- 3.Each party shall bear own costs
- On appeal from
- Chief Magistrate's Court, Naivasha
- Naivasha CMCC No. 183 of 2013
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court to the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamwe Limited v Isaac Nyaacha Bwekeria [2020] KEELRC 1891 (KLR)", Case Analysis (2020). ELRC Appeal No. 40 of 2017 (formerly Naivasha High Court Appeal No. 88 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1891/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.