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ELRCAllowedAppeal against Judgment and Decree in Mavoko PMCC No. 50 of 2015· [2021] KEELRC 2402 (KLR)

Apex Steel Limited v Onesmus Mutuku Komu [2021] KEELRC 2402 (KLR)

Environment and Land Court? No - High Court of Kenya (Machakos)
26 November 2021
MOMaureen Onyango
2,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court threw out a worker's injury claim because employer records like attendance registers proved no accident happened at work.

What this practically means

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Executive summary

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Apex Steel Limited appealed against the judgment of the Senior Resident Magistrate at Mavoko in PMCC No. 50 of 2015 delivered on 16th February 2018, in which the trial court found the Appellant 100% liable for a workplace accident allegedly suffered by the Respondent on 18th October 2013 and awarded general damages of Kshs.100,000 with costs and interest, while dismissing the claim for special damages of Kshs.4,500 for want of proof. The appeal was disposed of by written submissions. The Appellant argued that the trial magistrate ignored documentary evidence - the Wage Roll, Manual Attendance Register and Accident Register - showing the Respondent reported to work, signed 'NO' against the injury column, left without reporting any accident, and was never referred to the hospital the company used for injured employees. The Respondent maintained the judgment was sound and relied on authority that a first appellate court should not disturb a discretionary decision unless it is clearly wrong. Applying its duty as a first appellate court to re-evaluate the evidence as set out in Selle v Assorted Motor Boat Company, Maureen Onyango J found that the trial magistrate failed to address material evidence, including the attendance and accident registers, the referral of injured employees to Athi River Medical Services rather than Shalom Hospital, and the fact that the Respondent was treated and given sick off only on 22nd October 2013, four days after the alleged accident. Allowing the appeal, the court set aside the trial judgment and dismissed the Respondent's suit with costs in both the lower court and the appeal.

Key legal issues

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01

Whether the trial court erred in finding the Respondent was injured in the course of employment

Holding

Yes. The Trial Magistrate failed to address material evidence - the attendance register showing the Respondent signed 'NO' to injury, the accident register which did not contain his name, the wage roll, and the fact that he was referred to a hospital the Appellant did not use and treated days after the alleged accident.

Reasoning

The court on first appeal re-evaluated the evidence and found the Trial Magistrate ignored the Wage Roll and Manual Attendance Register showing no injury, ignored that the Appellant referred injured employees to Athi River Medical Services and not Shalom Hospital, and ignored that the Respondent was treated and given sick off on 22nd October 2013, four days after the alleged accident. The medical report issued five months later noted 'healing is complete', undermining the claimed injury.

p. 4
02

Whether the appeal should be allowed and the trial judgment set aside

Holding

Yes. The appeal had merit and the trial judgment was set aside with the Respondent's suit dismissed.

Reasoning

Having found that the Trial Magistrate failed to consider material documentary and oral evidence demonstrating that no accident occurred on 18th October 2013, the court concluded that the appeal had merit, allowed it, set aside the judgment and decree, and substituted an order dismissing the Respondent's suit with costs in both courts.

p. 4

Legal principles established

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  • On a first appeal, the court has a duty to re-evaluate the entire case and come up with its own findings while making 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 of the Trial Court is set aside and substituted with an order dismissing the Respondent's suit
  3. 3.Costs both in the lower Court and in the appeal awarded against the Respondent

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 (5)

  • Mbogo & Another v Shah
    (1968) EA 93
  • Abok James Odera t/a A.J Odera and Associates v John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Dorcas Wangithi Nderi v Samuel Kiburu Mwaura & Another
    (2015) eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure and Another
    (2015) eKLR
  • Selle v Assorted Motor Boat Company
    1968 EA 123-126
On appeal from
Senior Resident Magistrate's Court, Mavoko
PMCC No. 50 of 2015
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Senior Resident Magistrate's Court (trial court judgment in PMCC No. 50 of 2015)

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 Onesmus Mutuku Komu [2021] KEELRC 2402 (KLR)", Case Analysis (2021). Appeal against Judgment and Decree in Mavoko PMCC No. 50 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2402/eng@2021-11-26

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