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ELRCPartially AllowedMemorandum of claim dated 13th July 2015· [2022] KEELRC 433 (KLR)

Raphael Kyalo Mwanza v Bob Morgan Services Limited [2022] KEELRC 433 (KLR)

Employment and Labour Relations Court
23 March 2022
JGJacob Gakeri
3,584 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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An injured security guard won only Kshs.3,625 because he never brought his doctor to court, and injuries must be proven by medical testimony, not just paperwork.

What this practically means

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Executive summary

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The Claimant, a security guard, sued his employer for special and general damages for injuries sustained when he was assaulted by thugs on 16th June 2013 while on duty at a go-down along Enterprise Road. He pleaded special damages of Kshs.5,775 and general damages. The Respondent denied liability, asserting it had fulfilled its duty by training and equipping the Claimant, that the attack was unforeseeable, and that the claim was unproven. At hearing, the Claimant did not avail the doctor who authored his medical report despite being granted an adjournment for that purpose, and closed his case seeking reliance on the report under Section 35(1)(b) of the Evidence Act. The Court framed three issues: admissibility of the medical report, alleged unfair termination, and entitlement to reliefs. It held the medical report had only nominal probative value since the doctor was neither called nor explained away, and general damages could not be awarded without credible medical evidence of the nature and extent of injuries. The termination issue was rejected because it was neither pleaded nor testified to, the Court reiterating that parties are bound by their pleadings. Special damages were awarded only to the extent proved by receipts, namely Kshs.3,625 against the pleaded Kshs.5,775. Judgment was entered for the Claimant for Kshs.3,625/=, with 50% of the costs to the Claimant in light of partial success.

Key legal issues

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01

Admissibility of the doctor's medical report under Section 35(1)(b) of the Evidence Act

Holding

The report was of nominal probative value and could not support an award of general damages because the doctor was not called and no explanation for his absence was given

Reasoning

The Court noted that counsel had sought and obtained a one-month adjournment to avail the doctor, yet the doctor was not produced on the new date and no reason was offered. Without the maker's testimony or affidavit, the report was never tested by cross-examination, and damages could not be assessed on assumption.

p. 4
02

Whether the Claimant's termination was unfair

Holding

Nothing turns on the issue as termination was neither pleaded nor testified about and no relief was sought

Reasoning

The memorandum of claim made no claim for unlawful or unfair termination nor sought attendant remedies. Applying the principle that parties are bound by their pleadings, evidence adduced on termination was at variance with the pleadings and had to be disregarded.

p. 4
03

Whether the Claimant proved special and general damages

Holding

Special damages of Kshs.3,625 proved by receipts; general damages unproven

Reasoning

Receipts on record totalled Kshs.3,625 against the pleaded Kshs.5,775. General damages depended on proving the nature and extent of injuries, which required credible medical evidence; absent the doctor's testimony, the claim failed on a balance of probabilities.

p. 4

Legal principles established

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  • Special damages must be pleaded and specifically proved by evidence
  • A medical report may only be tendered under Section 35(1)(b) of the Evidence Act where the maker's attendance cannot be procured without unreasonable delay or expense; failure to call the maker reduces the report to nominal probative value
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for the sum of Kshs.3,625/= being special damages proved by receipts
  2. 2.Claim for general damages declined as unproven
  3. 3.Claimant awarded 50% of the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 35(1)(b)
  • Employment and Labour Relations Court ActSection 12(3)(v), (vi) and 4
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Purity Wambui Muriithi v Highlands Mineral Water Company Limited
    [2015] eKLR
  • Makala Mialu Mumende v Nyali Golf and County Blub
    [1989] eKLR
  • Adetoun Oladeji (NIG) Ltd v Nigeria Breweries PLC
    S.C. 91/2002
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Raila Odinga & another v IEB and 2 others
    [2017] eKLR
  • Mohammed Hassan Musa & Another v Peter M. Mailanyi & Another
    [2000] eKLR
  • Valji Jetha Kerai & another v Julius Ombasa Manono & another
    [2019] eKLR
  • George Kebaso Mabeya v Crown Industries Limited
    [2006] eKLR
  • Theodore Otieno Kambogo v Norwegian Peoples Aid
    [2007] eKLR
  • Meru South Farmers Co-operative Union Limited v Moses Otando Munaka & another
    [2015] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
Jurisdiction invoked
Section 12(3)(v), (vi) and 4 of the Employment and Labour Relations Court Act

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, "Raphael Kyalo Mwanza v Bob Morgan Services Limited [2022] KEELRC 433 (KLR)", Case Analysis (2022). Memorandum of claim dated 13th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/433/eng@2022-03-23

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