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ELRCPartially AllowedMemorandum of Appeal dated 19th November 2015 (filed at High Court at Machakos, transferred to ELRC)· [2021] KEELRC 2364 (KLR)

Kenya Builders & Concrete Company Limited v Aaron Kimeu Kioko [2021] KEELRC 2364 (KLR)

Employment and Labour Relations Court
8 October 2021
MOMaureen Onyango
2,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal decided by the Employment and Labour Relations Court, having been transferred from the High Court at Machakos on jurisdictional grounds because it arose from an employment relationship. The appeal challenged a judgment of the Chief Magistrate's Court delivered on 30th October 2015 by Hon. M. K. Mwangi, Senior Principal Magistrate, which found the Appellant employer 85% liable for failing to provide a safe system of work and awarded the Respondent Kshs.300,000 general damages and Kshs.3,000 special damages less 15% apportionment for chest injuries allegedly sustained on 17th September 2011 when a roller machine slid and struck him at a construction site in Nanyuki. The Appellant contended the claim was fraudulent: the Respondent sought treatment over a month later at a hospital in Athi River, far from Nanyuki, and had a parallel suit (CMCC No. 311 of 2013 at Mavoko) for a separate injury sustained during the sick-leave period of the first injury. The court, applying the principles in Selle v Associated Motor Boat Co. Ltd, identified serious anomalies in the medical records - inconsistent inpatient numbers, discharge summaries without admission, and differing document formats - none of which the trial court addressed. It held the Respondent failed to prove his case on a balance of probabilities. The appeal was allowed, the trial judgment was set aside and substituted with an order dismissing the plaintiff's case, with no orders as to costs.

Key legal issues

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01

Whether the Respondent proved his personal injury claim on a balance of probabilities

Holding

The trial court erred; the inconsistencies in the medical records raised doubt whether the Respondent suffered any injury, so his claim was not proved

Reasoning

The court identified glaring anomalies: two different inpatient numbers for treatment at the same hospital, inpatient numbers and discharge summaries despite no admission, markedly different discharge summary formats, two separate suits for injuries allegedly 17 days apart, and medical reports silent on the other injury. The trial magistrate failed to address these crucial matters, which would have raised sufficient doubt as to the authenticity of the averments of injury.

p. 4
02

Whether the trial magistrate's finding of 85% liability was against the weight of the evidence

Holding

Yes - the magistrate failed to consider crucial evidence of the earlier injury and pending Mavoko suit, rendering his decision against the weight of the evidence

Reasoning

The judgment made no mention of the earlier injury of 31st August 2011 or the other suit filed by the Respondent in Mavoko. Had the Learned Magistrate addressed that crucial evidence, it would have raised sufficient doubt as to the authenticity of the averments of injury. The Respondent therefore failed to discharge the burden of proving negligence on a balance of probabilities.

p. 4

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence itself, while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and order of the Chief Magistrate's Court against the Appellant delivered on 30th October 2015 be and is hereby set aside
  3. 3.The aforesaid judgment be and is hereby substituted with an order dismissing the plaintiff's case
  4. 4.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Nandwa v Kenya Kazi Limited
    (1988) KLR 488
  • Peters v Sunday Post Limited
    (1958) EA 424
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Justine Byahuwa Alima v Kenya Bus Services
    HCCA No. 3465 of 1982
On appeal from
Chief Magistrate's Court (initially filed at High Court at Machakos, transferred to ELRC)
null (judgment delivered 30th October 2015)
Jurisdiction invoked
Appeal transferred to the Employment and Labour Relations Court following a determination that the High Court lacked jurisdiction as the appeal arises out of an employment relationship

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, "Kenya Builders & Concrete Company Limited v Aaron Kimeu Kioko [2021] KEELRC 2364 (KLR)", Case Analysis (2021). Memorandum of Appeal dated 19th November 2015 (filed at High Court at Machakos, transferred to ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2364/eng@2021-10-08

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