Insight Management Consultants Limited v Dickson Gwaro Manduku [2022] KEELRC 640 (KLR)
The bottom line
#A Kenyan employer who offers no evidence in an occupational disease case will almost certainly lose on liability, even if the damages award is later reduced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Court erred in law and in fact in finding the Appellant liable for the occupational diseases suffered by the Respondent
- 2.Whether the award of general damages was so high as to warrant interference by this Court
Key legal issues
#Liability for occupational disease (allergic asthma from dust exposure)
Liability upheld against the Appellant at 80:20 because the Appellant adduced no evidence to rebut the Respondent's evidence or to prove it provided a safe working environment and safety gear.
The Appellant filed no documents or witness statements with its defence and closed its case without calling any witness, though it cross-examined the Respondent's witnesses. The Respondent produced treatment records and medical reports. The claim that the Respondent ought to have called an occupational health specialist failed because the Appellant itself could have called such expert evidence. Statutory duties under sections 6(2) and 101(1) of the Occupational Safety and Health Act were un-discharged and unrebutted.
Whether the award of Kshs.1,200,000/- general damages was excessive
The award was excessive and set aside, substituted with Kshs.250,000/-, the Court finding the Appellant's comparable authorities more apposite for similar (less severe) injuries.
The Court compared the injuries (difficulty in breathing, wheezing cough, allergic asthma) with the authorities cited. The Respondent's authorities involved far more severe injuries from toxic gases. The Appellant's authorities (awards of Kshs.70,000/- to Kshs.250,000/- for comparable respiratory injuries) were held more relevant. Applying the Kemfro Africa principles, the award was a wholly erroneous estimate justifying interference.
Legal principles established
#- An employer is under a statutory duty to provide and maintain a safe working environment and suitable protective clothing and appliances where employees are exposed to injurious or offensive substances (Occupational Safety and Health Act, sections 6(2) and 101(1)).
- A party that fails to adduce evidence leaves the opposing party's evidence uncontroverted and its own pleadings as mere allegations.
- An appellate court may interfere with quantum where the trial court took into account an irrelevant factor, left out a relevant one, or the amount is a wholly erroneous estimate of the damage.
- On a first appeal, the court's duty is to re-evaluate, re-assess and re-analyse the record and determine whether the trial court's conclusions should stand.
Court orders
#- 1.The award of general damages of Kshs.1,200,000/- is set aside and in place thereof general damages of Kshs.250,000/- awarded to the Respondent
- 2.The rest of the award remains as per the judgment of the Trial Court
- 3.Each party to bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court, Milimani
- Milimani Chief Magistrates Civil Suit No. 8641 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court decree (appeal originally filed in the High Court Civil Division and transferred to this Court for purposes of writing judgment)
Relief refused
#Setting aside of the entire judgment and decree and dismissal of the suit
The Court found the Trial Magistrate was right on liability given the Appellant's failure to adduce any evidence; only quantum was disturbed
Costs
Each party to bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Appellant having failed to adduce any evidence, I find that the Trial Magistrate was right in making a finding that the Appellant was liable and in apportioning liability at 80:20 as he did based on the evidence on record.
The Appellant was thus under an obligation to provide a safe working environment for the Respondent and to provide all necessary safety gear.
The arguments of the Appellant that the Respondent did not call an occupational safety specialist is without merit, having failed to adduce any evidence to rebut the evidence adduced on behalf of the Respondent. It was at liberty to call such expert witness.
(i) The award of general damages of Kshs.1,200,000/- is set aside and in place thereof I award the Respondent general damages in the sum of Kshs.250,000/-.
(iii) Each party to bear its costs.
Issues in the judgment
#The judgment refers inconsistently to the lower court suit number: the memorandum of appeal seeks setting aside of the decree in 'CMCC no. 5722 of 2016' while the appeal arises from Milimani Chief Magistrates Civil Suit No. 8641 of 2016.
Grounds of appeal and judgment refer to the Respondent's allergic condition and to disclosure, but paragraph 3 attributes the plea of contributory negligence to the Respondent failing to inform the Appellant - internally consistent but paragraph 30 describes Dr. Mwaura as examining the Respondent while he is the Respondent's own witness (PW1), though earlier described as 'the Appellant’s doctor'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Insight Management Consultants Limited v Dickson Gwaro Manduku [2022] KEELRC 640 (KLR)", Case Analysis (2022). High Court Civil Appeal No. 141 of 2018 (originally filed in the Civil Division of the High Court; transferred to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/640/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.