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ELRCPartially AllowedCivil Appeal No 60 of 2020· [2021] KEELRC 351 (KLR)

Simion Nyamweya Abincha v K. G. Patel & Sons Limited & another [2021] KEELRC 351 (KLR)

Environment and Labour Court: this is a first appellate judgment from the Magistrates' Court; the judgment does not print the court name. Given the workplace-injury subject matter and single-judge coram, it is an appeal in the Employment and Labour Relations Court at Nairobi.
19 November 2021
4,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a worker full compensation for a workplace injury after his employer offered no evidence to contest the claim.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Principal Magistrate's Court at Kajiado (Civil Suit No. 535 of 2015, S. M. Shitubi, CM) dismissing a workplace injury claim. The Appellant, a general labourer, testified that on 8th June 2015 a piece of building material fell from the 5th floor of a construction site and struck his head while he collected timber; he was given first aid at the scene, attended Kisaju Medical Clinic on 9th June 2015, and produced treatment notes and a medical report recording injury at work. The trial magistrate found the employment relationship proved (the Respondent called no evidence) but dismissed the suit because the Appellant had not satisfactorily explained the exact date of injury. On appeal, Ocharo Kebira J re-evaluated the evidence. Applying the settled principles governing first appeals (Selle v Associated Motor Boat Co.; Prudential Assurance v Jutley), the court held that the Appellant's account was coherent and uncontroverted; the trial magistrate had relied on extraneous matters (a stone allegedly lodged in the body, and the supposed 'fresh' appearance of injuries) that did not flow from the treatment notes or the evidence, and had failed to capture the Appellant's clarification on the date of hospital attendance. The court further held that once employment was proved, the Respondent was obliged to produce records such as the master roll and injury register (Employment Act s.10; Kebirigo Tea Factory v Tarid Raini), which it failed to do. The appeal was allowed: the trial judgment on liability was quashed and set aside and judgment entered on 100% liability against the Respondent jointly and severally, with the trial magistrate's proposed quantum of Kshs. 130,000 general and Kshs. 3,450 special damages adopted, plus costs of the appeal and the lower court suit, and interest on quantum at court rates from the date of judgment until full payment. Submissions on enhancing or reducing quantum were not considered, quantum not being a ground of appeal (Butt v Khan).

Key legal issues

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01

The duty of a first appellate court.

Holding

The first appellate court must re-evaluate the entire evidence and may reach a different conclusion, but must give due allowance for not having seen or heard the witnesses.

Reasoning

The court, citing Selle v Associated Motor Boat Co. and Prudential Assurance v Sukhwinder Singh Jutley, held that the jurisdiction of a first appellate court is as wide as that of a trial court. Its judgment must reflect conscious application of mind with reasons on all issues, and where it reverses findings of fact it must engage with the trial court's reasoning and assign its own.

p. 4
02

Whether the Appellant proved injury at the workplace on a balance of probabilities.

Holding

Yes. The Appellant's account was coherent (injury on 8th June 2015, first aid at scene, clinic on 9th June 2015 when his condition worsened), the medical report recorded injury at work, and the Respondent adduced no evidence to controvert it.

Reasoning

The court found the trial magistrate relied on a supposed discrepancy in dates (8th vs 9th June) that the Appellant had clarified, and on findings (fresh injuries, profuse bleeding, a lodged stone) not flowing from the treatment notes or the evidence. The Respondent, having closed its case without evidence, left the Appellant's account uncontroverted. The medical report expressly recorded injury at K.G. Patel and Sons on 8th June 2015 while on duty.

p. 6
03

Whether the trial magistrate erred by canvassing matters not before the court.

Holding

Yes. The magistrate's observation about a stone lodged in the body and the fresh appearance of injuries did not flow from the evidence or the treatment notes.

Reasoning

The court found nowhere in the Appellant's evidence-in-chief, cross-examination or re-examination where he stated a stone lodged in his body, and found nothing in the treatment notes about fresh injuries. These extraneous considerations influenced the decision, amounting to taking into account irrelevant matters and failing to consider relevant ones, to the Appellant's prejudice.

p. 5
04

The employer's duty to tender employment and incident records.

Holding

Once the employment relationship was proved, it was for the employer to tender records such as the master roll and injury register to disabuse the allegation of workplace injury; the Respondent did not do so.

Reasoning

Relying on section 10 of the Employment Act and Kebirigo Tea Factory v Tarid Raini, the court held the Respondent was obliged to produce the master roll and injury register to controvert the Appellant's testimony that the employer knew of the accident. Its failure left that evidence uncontroverted.

p. 6
05

Whether the quantum figures could be disturbed.

Holding

No. The figures of Kshs. 130,000 general and Kshs. 3,450 special damages were not a ground of appeal and no conditions for disturbance were demonstrated.

Reasoning

Applying Butt v Khan, the court held an appellate court will not disturb an award unless it is inordinately high or low as to present an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence materially. No such grounds existed, and submissions on quantum were therefore not considered.

p. 6

Legal principles established

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  • A first appellate court must consider and appreciate the entire evidence afresh and may come to a different conclusion from that of the trial court, giving due allowance for the fact that it did not see or hear the witnesses.
  • Where a defendant calls no evidence, the plaintiff's uncontroverted evidence on the circumstances of the accident and liability cannot be displaced by cross-examination alone or by matters not canvassed in evidence.
  • A trial court errs when it takes into account matters that were not canvassed in evidence by the parties, or fails to take into account relevant matters.
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to present an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in some material respect.

Court orders

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  1. 1.The learned trial Magistrate's Judgment on liability is quashed and set aside and in place thereof, this Court's Judgment on a 100% liability basis is made against the Respondents jointly and severally.
  2. 2.Judgment on quantum in the sum of Kshs. 130,000 general damages and Kshs. 3,450 special damages is entered in favour of the Appellant against the Respondents.
  3. 3.Costs of this Appeal, and those for the lower Court suit, are awarded to the Appellant.
  4. 4.Interest on the award on quantum shall be at court rates from the date of the judgment till full payment.

Authorities

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Legislation

  • Employment Actsection 10(1) and section 10(7)
  • Evidence Actsection 107(1)
  • Evidence Actsection 109
  • Work Injury Benefits Actsection 21

Cases cited (14)

  • Selle & another =vs= Associated Motor Boat Co. Limited & others
    [1968] E.A. 123
  • Timsales Limited =vs= Harun Thuo Ndungu
    [2010] eKLR
  • Kimatu Mbuvi =vs= Benson Ngali (Ngale)
    [2012] eKLR
  • Chengo Kitsao Chengo =vs= Umoja Rubber Products Limited
    [2016] eKLR
  • Kebirigo Tea Factory =vs= Tarid Raini
    [2008] eKLR
  • Wilson & Cycle Coal Co. =vs= English
    [1938] AC 579
  • Prudential Assurance Company of Kenya Limited =vs= Sukhwinder Singh Jutley & Another
    [2007] eKLR
  • P.J Dave Flowers Limited =vs= David Simiyu Wamalwa
    [2018] eKLR
  • Kakuzi Limited =vs= Lucy Wanjiri Kiguro
    [2011] eKLR
  • John Kanyangu Njoga =vs= Daniel Kimani Maingi
    [2000] eKLR
  • CMC Aviation Limited =vs= Cruise Air Limited
    [1978] E.A. 103
  • Butt =vs= Khan
    (1981) KLR 349
  • DWA Estate Limited =vs= Niko Mulaki Katambuka
    [2015] eKLR
  • Channan Agricultural Contractors Limited =vs= Fred Barasa Mutayi
    [2013] eKLR
On appeal from
Principal Magistrate's Court, Kajiado
Civil Suit No. 535 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (appeal against the judgment dated 6th July 2017 delivered on 3rd August 2017); no constitutional or statutory provision is expressly cited as the basis of jurisdiction.

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, "Simion Nyamweya Abincha v K. G. Patel & Sons Limited & another [2021] KEELRC 351 (KLR)", Case Analysis (2021). Civil Appeal No 60 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/351/eng@2021-11-19

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