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ELRCPartially AllowedMemorandum of Appeal filed 23 July 2018 (Kakamega), transferred 25 October 2019; number not stated in judgment· [2021] KEELRC 2290 (KLR)

West Kenya Sugar Co Limited v Vincent Ambonya Mulupi [2021] KEELRC 2290 (KLR)

Employment and Labour Relations Court
20 January 2021
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker won his injury case without a written contract, but the damages were cancelled because negligence was never properly proven.

What this practically means

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Executive summary

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The trial Magistrate, in a judgment delivered on 12 July 2018, found West Kenya Sugar Co. Ltd liable to Vincent Ambonya Mulupi for negligence in the workplace, awarding general damages of Kshs 100,000 (less 10% contributory negligence) and special damages of Kshs 6,000. The company appealed to the High Court in Kakamega on 23 July 2018 on thirteen grounds, principally challenging proof of employment, proof of the accident, the finding of 90% liability, the shifting of the burden of proof, and (in the alternative) quantum. On 25 October 2019 the High Court, citing lack of jurisdiction, transferred the appeal to this Court, which heard it at Kisumu; the appellant abandoned the quantum ground and reduced the grounds to five. Applying the Selle v Associated Motor Boat Co framework for a first appeal, the Court held that the Respondent proved employment through secondary records (a gate-pass and sick-sheet on the company's letterhead) read with section 10(7) of the Employment Act, 2007, given the employer's failure to produce logs or call the custodians of employment records. The Court also accepted that the Respondent proved he was at work and injured on 6 October 2013. However, on liability the Court found the trial Magistrate had prematurely shifted the burden of proof to the employer; the Respondent did not establish what the employer failed to do to provide a safe system of work or a causal link. The Court observed that the facts merred a claim under the Work Injury Benefits Act. The appeal was partially allowed: the liability findings were set aside, the damages awards were vacated, and each party was ordered to bear its own costs of the trial and the appeal.

Key legal issues

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01

Proof of employment relationship without a written contract

Holding

The Respondent proved employment to the requisite standard through secondary records (gate-pass, sick-sheet on the Appellant's letterhead) read with section 10(7) of the Employment Act, 2007.

Reasoning

The Respondent lacked a written contract but produced secondary employment records: a gate-pass and a sick-sheet on the Appellant's letterhead, and named his supervisor. The Appellant failed to call any witness with custody of employment records or produce the tractor logs, with no explanation. By virtue of section 10(7) of the Employment Act, 2007, the secondary records sufficed to establish employment.

p. 2
02

Whether the Respondent was at work and involved in an accident on 6 October 2013

Holding

The Court was satisfied the Respondent proved on a balance of probability that he was at work and was injured in an accident while on duty.

Reasoning

Employees do not keep attendance records, so it was the employee's word against the employer's. The Appellant failed to produce tractor logs and did not call the supervisor or fellow loader, without explanation. The sick-sheet on the Appellant's letterhead recorded a workplace accident on 6 October 2013 at 11.00 am, corroborating the Respondent's account.

p. 3
03

Liability for negligence and burden of proof

Holding

The trial Court erred by shifting the burden of proof to the Appellant prematurely; the Respondent did not establish a causal link or breach of duty of care, so the liability finding was set aside.

Reasoning

The Respondent attributed the injury to a snapping wire rope but did not disclose what the Appellant failed to do in providing a safe system of work. The trial Court reasoned that the rope was the only available means of fastening cane and that the Appellant led no evidence of contributory blame, in effect reversing the burden. The legal burden lay on the Respondent before any evidentiary burden shifted.

p. 3

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence itself, making allowance for not having heard the witnesses, and is not bound by trial findings where the trial court failed to take account of material circumstances.
  • Under section 9 of the Employment Act, 2007 it is the duty of the employer to prepare a written contract and cause the employee to sign it.
  • The legal burden of proving negligence lies on the plaintiff; the evidentiary burden cannot prematurely shift to the defendant.
  • Where an employee is injured in the course of employment and negligence is not established, the appropriate statutory avenue is compensation under the Work Injury Benefits Act.

Court orders

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  1. 1.Appeal partially allowed
  2. 2.Findings on liability by the trial Court set aside
  3. 3.Award of general and special damages vacated
  4. 4.Each party to bear own costs of the trial and the Appeal

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Act, 2007section 10(7)
  • Work Injury Benefits Act

Cases cited (1)

  • Selle and Another v Associated Motor Boat Co. Ltd & Ors
    (1968) EA 123
On appeal from
Magistrates' Court (trial in the subordinate court, appeal filed in the High Court, Kakamega)
Jurisdiction invoked
First appeal transferred to this Court by the High Court on 25 October 2019 for lack of jurisdiction (employment and labour relations dispute); Employment Act, 2007 and Work Injury Benefits Act engaged

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, "West Kenya Sugar Co Limited v Vincent Ambonya Mulupi [2021] KEELRC 2290 (KLR)", Case Analysis (2021). Memorandum of Appeal filed 23 July 2018 (Kakamega), transferred 25 October 2019; number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2290/eng@2021-01-20

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