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ELRCDismissedELRC Appeal (formerly Machakos High Court Civil Appeal No. 10 of 2018), arising from Mavoko CMCC No. 1143 of 2015· [2021] KEELRC 1101 (KLR)

Tile and Carpet Centre Limited v Geoffrey Kipkorir Langat [2021] KEELRC 1101 (KLR)

Employment and Labour Relations Court
13 August 2021
MOMaureen Onyango
3,833 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 who failed to produce employment records or evidence lost an appeal and must pay an injured worker KES 1.5 million plus costs.

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 against the judgment of L. Kassan, Senior Principal Magistrate, Mavoko in CMCC No. 1143 of 2015, in which Geoffrey Kipkorir Lang'at had obtained judgment against Tile & Carpet Centre Limited for injuries sustained on 27th October 2015 when a crane malfunctioned and dropped a heavy metal rod on him at work. The trial court entered judgment with liability at 100%, general damages of KES 1,500,000, and special damages of KES 11,000. The Appellant raised eight grounds, contending that the employment relationship was unproven, the burden of proof was wrongly shifted, contributory negligence was ignored, and quantum was inordinately high, including the unpleaded KES 8,000 for the doctor's court attendance. Maureen Onyango J. framed five issues and, applying the settled role of a first appellate court, held that the trial court's findings were supported by evidence. The Respondent's uncontroverted testimony of employment, corroborated by the Appellant's own medical report referencing an industrial accident and by the Appellant's payment of his medical expenses, sufficed; Sections 10(5), (6) and 74 of the Employment Act shifted the burden of producing employment records to the employer. Relying on Peter Benard Makau v Prime Steel Limited, the Court held that contributory negligence cannot be attributed to an employee without evidence, and no such evidence was laid. The quantum award was upheld, the Appellant's own report showing 12% permanent incapacitation requiring surgery, and the Gabriel Kariuki Kigathi authority was distinguished. The special damages were pleaded and proved by receipts. The appeal failed in its entirety, with costs of the appeal and the lower court awarded to the Respondent.

Key legal issues

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01

Existence of an employment relationship

Holding

The trial court did not err in finding the Respondent was employed by the Appellant; the employer's own medical report recorded an industrial accident while employed, medical expenses were paid by the Appellant, and no rebuttal evidence was called

Reasoning

The Respondent testified he was a casual worker, named his supervisors (Mr. Raju and Victor), described his duties, and was hospitalised with expenses paid by the Appellant. The Appellant produced no witnesses or employment records. Section 74 of the Employment Act obliges employers to keep employee records, shifting the burden to the employer to disprove employment.

p. 3
02

Proof of the case and apportionment of liability at 100%

Holding

The Respondent proved his case on a balance of probabilities; the trial court correctly found the Appellant wholly liable as the Appellant adduced no evidence of contributory negligence or of provision of safety apparel

Reasoning

The injuries pleaded matched the evidence corroborated by Dr. Titus Ndeti and by the Appellant's own medical report. Following Peter Benard Makau v Prime Steel Limited, contributory negligence requires evidence that the employee's fault caused the harm; the Appellant laid no evidence that it provided safety gear or directions, so 100% liability stood.

p. 4
03

Quantum of general damages (KES 1,500,000)

Holding

The award was neither based on a wrong principle nor inordinately high; it was upheld

Reasoning

The Appellant's own medical report recorded severe injury with 12% permanent incapacitation and a recommended restorative surgery costing KES 80,000. The comparative authority of Gabriel Kariuki Kigathi was distinguishable because there the claimant had no incapacitation and no future medical procedures were contemplated.

p. 5
04

Special damages of KES 11,000 including KES 8,000 for the Doctor's court attendance

Holding

The special damages were pleaded and proved and were upheld

Reasoning

The KES 3,000 for the medical report was pleaded in the Plaint, general medical expenses were pleaded, and receipts for both the medical report and the doctor's court attendance fees were produced as Plaintiff's Exhibits 6b and 6c. The ground that the KES 8,000 was unpleaded therefore failed.

p. 5

Legal principles established

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  • A first appellate court may only interfere with a trial court's finding of fact if it was based on no evidence, a misapprehension of the evidence, or a wrong principle of law
  • Under Sections 10(5), (6) and 74 of the Employment Act, the burden shifts to the employer to produce employment records to controvert an employee's claim of employment
  • Contributory negligence should not be attributed to an employee absent evidence establishing the employee's fault as a legal and factual cause of the harm
  • An appellate court will not disturb an award of general damages unless it is based on a wrong principle or is so inordinately high or low as to be an entirely erroneous estimate

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The judgment of the trial court, including liability at 100% against the Appellant, the award of KES 1,500,000 general damages and KES 11,000 special damages, is upheld
  3. 3.The costs of this Appeal and in the lower court are awarded to the Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 74
  • Employment Act, 2007Section 10(5) and (6)
  • Occupational Safety and Health ActSection 13(1)(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (13)

  • Sumaria & Another v Allied Industrial Limited
    [2007] 2 KLR
  • Peters v Sunday Post Limited
    [1958] E.A
  • Nandi Tea Estates Limited v Eunice Jackson Were
    [2006] eKLR
  • Mwanyule v Said Juma t/a Jomvu Total Service Station
    [2004] 1 KLR 47
  • Eastern Produce (K) Limited v Allan Okisai Wasike
    [2014] eKLR
  • Mohamed Farrah v Kenya Ports Authority
    [1988-1992] 2 KAR 283
  • Peter Benard Makau v Prime Steel Limited
    [2018] eKLR
  • West (H) & Sons Limited v Shepherd
    [1964] AC 326
  • Millicent Atieno Ochuonyo v Katola Richard
    [2015] eKLR
  • Shabani v City Council Nairobi
    [1995] eKLR
  • Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja
    [1982-88] 1 KAR 982
  • Cecilia W. Mwangi & Another v Ruth W. Mwangi
    [1997] eKLR
  • Gabriel Kariuki Kigathi & Another v Monica Wangui Wangechi
    [2016] eKLR
On appeal from
Senior Principal Magistrate's Court, Mavoko
CMCC No. 1143 of 2015
Jurisdiction invoked
First appeal from the subordinate court to the Employment and Labour Relations Court (appeal transferred from the High Court by Ruling of Kimei J. delivered 4th February 2020)

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, "Tile and Carpet Centre Limited v Geoffrey Kipkorir Langat [2021] KEELRC 1101 (KLR)", Case Analysis (2021). ELRC Appeal (formerly Machakos High Court Civil Appeal No. 10 of 2018), arising from Mavoko CMCC No. 1143 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1101/eng@2021-08-13

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