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ELRCDismissedNot stated in the judgment· [2023] KEELRC 490 (KLR)

Milimani Holdings Limited v Nyamosi (Employment and Labour Relations Appeal 21 of 2022) [2023] KEELRC 490 (KLR)

Employment and Labour Relations Court
28 February 2023
2,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that employers who fail to present evidence at trial cannot win on appeal, even against injury claims from casual workers.

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 against the judgment of Hon. B Kalo, Chief Magistrate at Nakuru, in CMCC No. 551 of 2013 delivered on August 15, 2017. The respondent, who sued as plaintiff below, claimed he was employed by the appellant as a general worker and was injured on January 21, 2013 when struck by a falling building stone at the appellant's Milimani apartment construction site, sustaining soft tissue chest injuries. He relied on a casual labour card, outpatient card and a medical-legal report by Dr Obed Omuyoma, produced by consent. The appellant denied any employment relationship, asserting it was an investment company using independent contractors, but called no evidence at trial. The trial magistrate found the respondent's case uncontroverted and entered judgment for him. The appellant raised six grounds, contending mainly that no employment relationship or negligence was proved, and that the trial court improperly shifted the burden of proof, citing Nandi Tea Estate, Devki Steel Mills, Twin River 1 Estate, Lomolo [1962] Limited and Charterhouse Bank. The respondent relied on Linus Nganga Kiongo and Trust Bank v Paramount Universal Bank. Wasilwa J, exercising the first appellate mandate to re-examine the evidence afresh, held that the respondent's evidence - including the casual labour card and the consent-produced medical report - remained uncontroverted, that the appellant's defence was mere allegation unsupported by evidence, and found no basis to interfere. The appeal was dismissed with costs to the respondent in both the appeal and the lower court.

Key legal issues

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01

Proof of employment relationship

Holding

The casual labour card produced by consent and the uncontroverted evidence sustained a finding of employment with the appellant

Reasoning

The respondent produced a casual labour card and a medical report by Dr Obed Omuyoma produced by consent, indicating its contents were admitted. The appellant denied employment but offered no evidence; its defence therefore remained mere allegations which, under sections 107 and 108 of the Evidence Act, needed evidentiary support.

p. 5
02

Effect of failure by a defendant to adduce evidence

Holding

The respondent's case remained uncontroverted and unchallenged, justifying the trial court's finding of liability

Reasoning

Relying on Trust Bank Ltd v Paramount Universal Bank and Linus Nganga Kiongo, the court held that a party failing to call evidence leaves its pleadings as mere statements of fact, and the opposing evidence stands uncontroverted. The appellant cross-examined but adduced no defence evidence, so judgment on the respondent's evidence was proper.

p. 4
03

Whether the trial magistrate shifted the burden of proof

Holding

No error; the respondent had proved his case on the material before the trial court

Reasoning

The appellant argued the magistrate shifted the burden by holding liability against it for not calling rebuttal evidence. The court found the respondent had adduced evidence (casual labour card, medical report by consent) which stood unrebutted, so the trial court's conclusion on liability was supported by the record and there was no basis to interfere.

p. 6

Legal principles established

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  • On a first appeal, the court is mandated to re-examine the evidence on record afresh
  • Where a defendant fails to adduce evidence, the plaintiff's uncontroverted evidence may support judgment, including documents produced by consent

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs to the respondent in both this appeal and in the lower court

Authorities

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Legislation

  • Evidence ActSection 107(1) & (2)
  • Evidence ActSections 107 and 108

Cases cited (9)

  • Nandi Tea Estate Limited v Eunice Jackson Were
    [2006] eKLR
  • Devki Steel Mills Limited v John Mbuvi Mackenzie
  • Twin River 1 Estate v Teresia Mutheu Nzui
    [2018] eKLR
  • Lomolo [1962] Limited v Anam Kwangulei
    [2019] eKLR
  • Charterhouse Bank Limited (Under Statutory Management) v Frank N Kamau
    [2016] eKLR
  • Linus Nganga Kiongo & 3 others v Town Council of Kikuyu
    [2012] eKLR
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No 1243 of 2001
  • Janet Kaphiphe Ouma & Another v Marie Stopes International [Kenya]
    Kisumu HCCC No 68 of 2007
  • Edward Mwuga through Stanley Muriga v Nathanie D. Schuter
    [A No. 23 of 1997]
On appeal from
Chief Magistrates Court at Nakuru
Nakuru CMCC No. 551 of 2013
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrates Court (1st appeal - re-examination of evidence)

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, "Milimani Holdings Limited v Nyamosi (Employment and Labour Relations Appeal 21 of 2022) [2023] KEELRC 490 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/490/eng@2023-02-28

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