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ELRCPartially AllowedMachakos High Court Civil Appeal No. 29 of 2016 (transferred to the Employment and Labour Relations Court)· [2021] KEELRC 2383 (KLR)

Apex Steel Limited v Elijah Ongwenyi Manoti [2021] KEELRC 2383 (KLR)

Employment and Labour Relations Court
26 November 2021
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a worker's injury claim because he couldn't prove the accident happened—the employer's records disproved it.

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 at Machakos (transferred from the High Court by Odunga J. on jurisdictional grounds) against the judgment of C. K. Kisiangani, Resident Magistrate, delivered on 24th February 2016, which awarded the respondent general damages of Kshs.75,000 and special damages of Kshs.1,500 for a workplace burn allegedly sustained on 2nd March 2013 while carrying hot metal rods at the appellant's factory. The appellant contested the occurrence of the accident altogether, relying on the clocking-in records, the accident register and the evidence of DW1 Onesmus Kali Muema, and faulted the magistrate for shifting the burden of proof and ignoring evidence. The respondent maintained that he had proved his case on a balance of probabilities. Maureen Onyango J, restating the duty of a first appellate court to re-evaluate evidence and draw independent conclusions, found that the magistrate had erred by determining the claim on unpleaded issues of safety gear and a safe working environment and by shifting the burden of proof to the appellant. Both PW1 and PW2 had admitted the accuracy of the clocking-in records, which showed PW2 was not at work at the material time, and the accident register recorded no accident on the material date. The court held the respondent had not proved that an accident occurred or that the appellant was negligent, allowed the appeal, set aside the trial judgment and dismissed the suit with costs to the appellant.

Key legal issues

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01

Burden of proof in a workplace injury claim

Holding

The plaintiff must prove occurrence of the accident, negligence and injury on a balance of probabilities; the trial magistrate erred by requiring the employer to prove it provided safety gear and a safe working environment before the occurrence of the accident was established

Reasoning

The occurrence of the accident was denied. Under Sections 107, 108 and 3(4) of the Evidence Act, the respondent bore the burden of proving the accident, breach and injury. The magistrate instead found the employer's failure to prove provision of safety gear determinative, despite no issue on safety gear arising at the hearing, thereby shifting the burden of proof onto the appellant.

p. 3
02

Whether the respondent proved the accident occurred on 2nd March 2013

Holding

No - the clocking-in records and accident register, admitted by the respondent's own witnesses, showed no accident was reported and PW2 was not at work at the material time

Reasoning

PW1 and PW2 admitted the clocking-in sheet was accurate and used for wage payment; it showed the respondent left work at 18.12 and PW2 was not at work when the accident allegedly occurred. The accident register recorded no accident on the material date. This evidence created reasonable doubt that the respondent discharged the burden of proof.

p. 3
03

Duty of a first appellate court

Holding

The first appellate court must re-evaluate the evidence and draw independent conclusions

Reasoning

Relying on Selle v Associated Motor Boat Co. and Williamson Diamonds v Brown, the court restated that on a first appeal it is not bound by the trial court's findings but must subject the evidence to fresh evaluation and reach its own conclusions, mindful that it did not see the witnesses.

p. 2

Legal principles established

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  • On a first appeal, the court's duty is to re-evaluate the evidence on record and draw its own independent conclusions
  • A party who alleges an accident and negligence bears the burden of proving it on a balance of probabilities; the burden cannot be shifted to the defendant to disprove the claim

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the Trial Magistrate delivered on 24th February 2016 is set aside
  3. 3.Substituted therefor is an order dismissing the Respondent's suit
  4. 4.The suit is dismissed with costs to the Appellant

Authorities

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Legislation

  • Evidence ActSections 107, 108 and 3(4)
  • Civil Procedure RulesOrder XIV; Order 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (5)

  • Wareham t/a A. F. Wareham & 2 Others v Kenya Post Office Savings Bank
    2 KLR [2004]
  • Kanyungu Njogu v Daniel Kimani Maingi
    [2000] eKLR
  • Eastern Produce (K) Limited v Joseph Mamboleo Khamachi
    [2015] eKLR
  • Selle & Another v Associated Motor Boat Company Limited & Others
    [1968] E.A. 123
  • Williamson Diamonds Lao v Brown
    [1970] E.A 1
On appeal from
Chief Magistrate's Court at Machakos (Resident Magistrate C. K. Kisiangani)
Not stated in judgment
Jurisdiction invoked
First appeal from the subordinate court; transferred from the High Court at Machakos by a ruling of Odunga J. on grounds of jurisdiction

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, "Apex Steel Limited v Elijah Ongwenyi Manoti [2021] KEELRC 2383 (KLR)", Case Analysis (2021). Machakos High Court Civil Appeal No. 29 of 2016 (transferred to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2383/eng@2021-11-26

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