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ELRCPartially AllowedAppeal from Principal Magistrates' Court (Kakamega), suit filed 7 March 2014; Memorandum of Appeal filed 5 April 2018 in High Court, Kakamega· [2021] KEELRC 2295 (KLR)

West Kenya Sugar Co Ltd v Benard Nyabela Meyi [2021] KEELRC 2295 (KLR)

Employment and Labour Relations Court
20 January 2021
1,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed the worker's employment but threw out his injury claim because he couldn't prove the accident happened.

What this practically means

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Executive summary

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The Respondent sued West Kenya Sugar Co Ltd before the Magistrates Court for breach of duty of care and breach of contract arising from an alleged workplace accident on 8 September 2011. On 5 March 2018 the trial court found the Appellant 70% liable and awarded general damages of Kshs 86,000 after factoring contributory negligence. The Appellant appealed to the High Court, Kakamega, raising seven grounds attacking the findings on liability, proof and quantum. On 25 October 2019 the High Court, citing lack of jurisdiction, transferred the appeal to the Employment and Labour Relations Court, where both parties filed written submissions. Radido J first restated the duty of a first appellate court, citing Kamau v Mungai (2006) 1 KLR 150, to re-evaluate the evidence and reach its own conclusions. On the employment relationship, the Court found the evidence inconsistent but, invoking section 10(7) of the Employment Act, 2007 and the employer's failure to produce biometric attendance registers and pay records and to call the Human Resource Manager, held that the Respondent had proved he was an employee at the material time. However, on the accident itself, the Court found the medical records inconsistent - the outpatient number and name did not match the clinic register - and noted that the colleague said to have been carrying the metal with the Respondent was never named or called. The Court held the Respondent had not discharged the burden of proving the accident, so liability fell away. The appeal was allowed, the judgment of 5 March 2018 was substituted with an order dismissing the plaint filed on 7 March 2014, and each party was ordered to bear its own costs.

Key legal issues

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01

Role of a first appellate court

Holding

The first appellate court must re-evaluate the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses.

Reasoning

The Court adopted the standard set in Kamau v Mungai (2006) 1 KLR 150, under which it was duty-bound to re-evaluate the trial evidence independently. It then assessed the oral testimony and exhibits afresh before concluding that the trial court had erred in fact and law in both the employment finding and the accident finding.

p. 2
02

Existence of an employment relationship in September 2011

Holding

Proved on a balance of probability, aided by section 10(7) of the Employment Act, 2007.

Reasoning

The evidence was inconsistent: the employer's witness disowned the contract as fake, claimed computerised biometric attendance, and said the Respondent worked in 2005-2006, not 2011. Yet the employer, obliged to keep employment records, did not produce biometric registers or pay records for September 2011, and the Human Resource Manager then in office, though listed as a witness, was not called.

p. 2
03

Proof of the workplace accident of 8 September 2011

Holding

Not proved; the burden of proof was not discharged.

Reasoning

The clinic witness conceded under cross-examination that the outpatient number and name in the booklet did not match the register extract. The Respondent never named the colleague with whom he was carrying the metal, and that colleague was not called. Given the inconsistencies, corroboration was necessary, and none was offered.

p. 2
04

Liability of the Appellant

Holding

Falls away; the trial court erred in finding liability for an unproved accident.

Reasoning

Having found no proof of an accident on 8 September 2011, the Court held that liability could not attach. The trial court's award of Kshs 86,000 after 70% liability was premised on an accident that was not proved, constituting an error of both fact and law warranting substitution of the judgment with dismissal of the plaint.

p. 3

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses.
  • Under section 10(7) of the Employment Act, 2007, where an employer fails to keep or produce employment records and does not call material witnesses, an employee's oral evidence of an employment relationship may suffice.
  • A plaintiff must discharge the burden of proving the accident; inconsistent medical records and failure to call corroborative witnesses are fatal to the claim.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment delivered on 5 March 2018 is substituted with an order dismissing the Plaint filed on 7 March 2014
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 10(7)

Cases cited (1)

  • Kamau v Mungai
    (2006) 1 KLR 150
On appeal from
High Court, Kakamega (original appeal from the Magistrates Court)
Memorandum of Appeal filed 5 April 2018
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Court Act over employment disputes; the High Court transferred the appeal for lack of jurisdiction on 25 October 2019

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 Ltd v Benard Nyabela Meyi [2021] KEELRC 2295 (KLR)", Case Analysis (2021). Appeal from Principal Magistrates' Court (Kakamega), suit filed 7 March 2014; Memorandum of Appeal filed 5 April 2018 in High Court, Kakamega. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2295/eng@2021-01-20

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