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ELRCDismissedAppeal No. E2 of 2021 (formerly High Court Appeal No. 74 of 2014)· [2021] KEELRC 1241 (KLR)

Menengai Oil Refineries Limited v Michael Wokaba Wamalwa [2021] KEELRC 1241 (KLR)

Employment and Labour Relations Court
21 July 2021
HWHellen Wasilwa
1,538 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 that cannot prove it issued protective gear to an injured worker stays liable for workplace injuries, with damages upheld.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru, per Hellen Wasilwa J, dismissed an appeal by Menengai Oil Refineries Limited against the judgment of Hon. M. A. Otindo in Nakuru CMCC No. 286 of 2013. The respondent, a lab technician employed by the appellant, was injured on 29th September 2012 when crude palm oil gushed from a lorry lid while he was sampling, suffering chemical burns to the eyes and first-degree facial burns classified as grievous harm. He sued alleging an unsafe working environment and non-provision of protective gear; the appellant denied liability, contending it had supplied dust coats, gumboots, helmets and goggles which the respondent negligently failed to wear. On appeal, the appellant argued the trial court ignored its submissions, wrongly held it 80% liable, and awarded excessive damages; it proposed Kshs. 100,000 in general damages. The respondent maintained the award was sound and sought 100% liability against the employer. As the first appellate court, Wasilwa J re-evaluated the evidence afresh. She found the injury proved and admitted, and held the appellant had produced no evidence - such as a signed issuance sheet or service certificate - proving that protective gear had been issued. She found the trial magistrate's assessment of the plaintiff's contributory negligence reasonable and the award of Kshs. 300,000 general damages well grounded in the facts and the authorities cited. The appeal was accordingly dismissed with costs to the respondent.

Key legal issues

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01

Liability of employer for workplace injuries where protective gear issuance is disputed

Holding

The trial court's apportionment of liability was reasonable; the employer failed to prove issuance of protective gear, and even the finding of partial contributory negligence against the employee was upheld

Reasoning

The plaintiff proved he was injured at work and suffered burns to his eyes and face. The employer's witness admitted no signature was recorded for issuance of safety equipment, and no issuance records or service certificates were produced. The appellate court found the trial magistrate's assessment of negligence reasonable, even on the assumption that gear had been supplied.

p. 2
02

Quantum of general damages for chemical eye burns and facial burns

Holding

The award of Kshs. 300,000 general damages was justified and the appellate court declined to interfere

Reasoning

The court re-evaluated the evidence and submissions and found the trial magistrate had considered the authorities placed before her and assessed damages on the current facts. No basis was shown for the appellant's proposal of Kshs. 100,000, so the award was left undisturbed.

p. 2
03

Duty of first appellate court

Holding

The court re-evaluated the evidence afresh before reaching its conclusion

Reasoning

As the first appellate court, it was required to re-examine the evidence on record, which it did by reviewing the testimony of the plaintiff, the doctor, and the employer's witness before affirming the judgment.

p. 2

Legal principles established

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  • A first appellate court is obliged to re-evaluate the evidence on the record afresh.
  • An employer alleging that protective gear was issued to an employee bears the evidential burden of proving such issuance.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (8)

  • Wood -v- Durable Suites Limited
    [1953] ALL ER 391
  • Muthuku –v- Kenya Cargo Services
    [1991] KLE 468
  • Kanyenyani Tea Factory Co. Limited –v- Stanley Muhia Gichure
    [2008] eKLR
  • African Highlands and Produce Co. Ltd –v- Collins Moseti Ontweka
    Kericho HCCA No. 38 of 2002
  • Ngala Shedi –v- Jackson Nyanbu
  • Wellington Miena –v- Nairobi City Commission
  • Savco Stores Ltd –v- David Mwangi Kimotho
    [2008] eKLR
  • Timesales Limited –v- Penina Achined Omondi
    [2011] eKLR
On appeal from
Nakuru Chief Magistrates Court
Civil Case Number 286 of 2013
Jurisdiction invoked
First appeal from the subordinate court under the court's appellate jurisdiction (Memorandum of Appeal dated 10th June 2014)

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, "Menengai Oil Refineries Limited v Michael Wokaba Wamalwa [2021] KEELRC 1241 (KLR)", Case Analysis (2021). Appeal No. E2 of 2021 (formerly High Court Appeal No. 74 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1241/eng@2021-07-21

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