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ELRCAllowedAppeal from Kakamega CMCC No. 66 of 2017 (Memorandum of Appeal dated 1st April 2022)· [2023] KEELRC 549 (KLR)

West Kenya Sugar Company Limited v Bushuru (Employment and Labour Relations Appeal E009 of 2022) [2023] KEELRC 549 (KLR)

High Court of Kenya (sitting on appeal from the trial magistrate's court)
2 March 2023
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the High Court at Bungoma (J. W. Keli, Judge) against the judgment of Honourable H. Wandera Senior Principal Magistrate delivered on 26th October 2021 in Kakamega CMCC No. 66 of 2017, in which the trial court entered judgment for the claimant against the defendants jointly and severally in general damages of KES 200,000 and special damages of KES 55,000 for a workplace injury allegedly sustained on 2nd May 2014. The appeal was canvassed by written submissions and raised liability, quantum and special damages. The court restated the first appellate duty, per Selle v Associated Motor Boat Co. Ltd, to re-evaluate the evidence and draw its own conclusions. It accepted that although the appellant filed a defence but called no evidence, the defence remained unproved and could not be considered, yet the plaintiff still bore the statutory burden of proof under sections 107 and 109 of the Evidence Act. Re-evaluating the record, the court found material gaps: the gate pass proved employment only for 1st April 2015, nearly a year after the alleged accident; the sick sheet of 11th April 2015 recorded a fresh cut wound on the right leg, inconsistent with the alleged left toe injury; and only one sick sheet existed. It held there was no proof of an employer-employee relationship on the accident date and no nexus between the medical records and the alleged injury, faulting the magistrate for relying on Dr. Lamba's medical report to the exclusion of these documents. The court allowed the appeal, set aside the entire judgment and decree, dismissed the claim with no order as to costs, ordered immediate release of monies held as security, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Whether the respondent proved liability (including employer-employee relationship) on balance of probabilities

Holding

No - the respondent failed to prove he was a casual employee of the appellant on the alleged accident date, and the medical records lacked nexus to the alleged injury; the trial court's finding on liability was set aside.

Reasoning

The court re-evaluated the evidence and found material gaps: the gate pass produced was dated 1st April 2015, almost a year after the alleged accident of 2nd May 2014; the sick sheet of 11th April 2015 recorded a fresh cut wound on the right leg, inconsistent with a left toe injury of May 2014; only one sick sheet existed, not two. The trial magistrate erred by relying on Dr. Lamba's medical report to the exclusion of these documents.

p. 7
02

The effect of the defendant's failure to adduce evidence at trial

Holding

The filed defence, unproved by evidence, could not be considered; but even so the plaintiff retained the statutory burden of proving his case under sections 107 and 109 of the Evidence Act.

Reasoning

Relying on Edward Mariga v Nathaniel David Shulter and Motex Knitwear v Gopitex Knitwear, the court held the unproved defence was unavailable for consideration. However, applying Selle and the Evidence Act, the absence of a defence did not relieve the plaintiff of proving facts asserted and the defendant's liability.

p. 6
03

Whether the appeal on quantum and special damages required separate determination

Holding

Not reached on the merits - the entire judgment was set aside on liability, rendering quantum and special damages moot.

Reasoning

Having found no proof of liability and no evidence of engagement as a casual worker on the accident date, the court set aside the entire judgment of the trial court and dismissed the claim, with no separate findings on quantum or special damages necessary.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions, making allowance for the fact it neither saw nor heard the witnesses.
  • Even where a defendant does not adduce evidence, the plaintiff still bears the burden of proving his case under sections 107 and 109 of the Evidence Act.
  • Proof of employer-employee relationship on the alleged date of accident is primal to a finding of liability in a work injury claim.

Court orders

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  1. 1.Appeal allowed
  2. 2.Entire judgment and decree of Honourable H. Wandera Senior Principal Magistrate delivered on 26th October 2021 in Kakamega CMCC No. 66 of 2017 set aside
  3. 3.In its place, the claim dated 20th February 2017 dismissed with no order as to costs
  4. 4.Monies held as security for decree to be released immediately to the appellant
  5. 5.Costs of the appeal awarded to the Appellant

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 109
  • Occupational Safety and Health Act No. 15 of 2007section 13(1)(a) and (c)

Cases cited (14)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • David Kahuruka Gitau and another v Nancy Ann Wathithi Gitau and another
    No. 43 of 2013
  • Kenital (K) Limited v Charles Mutua Mulo & Others (UR)
    Eldoret HCCA No. 103 of 2022
  • Sally Kibii v Dr. Francis Ogaro
    Eldoret HCC No. 102 of 2015
  • Japheth Natse Ifedha v Collindale Security Company Limited
    (2014) eKLR
  • Mwanyule v Said T/A Jomvu Total Service Station
    (2004) 1 KLR 47
  • P.J Dave Flowers LTD v David Simiyu Wamalwa
    (2018) eKLR
  • Netah Njoki Kamau & Another v Eliud Mburu Mwaniki
    (2011) eKLR
  • North End Trading Company Limited (Carrying on the Business Under the Registered Name of) Kenya Refuse Handlers Limited v City Council of Nairobi
    (2019) eKLR
  • Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra And Another v Raju Govindji
    HCCC No. 548 of 1998
  • Edward Mariga Through Stanley Mobisa Mariga v Nathaniel David Shulter & Another
    [1979] eKLR
  • Cmc Aviation Ltd v Crusair Ltd (No.1)
    (1987) KLR 103
On appeal from
Senior Principal Magistrate's Court, Kakamega
Kakamega CMCC No. 66 of 2017
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in Kakamega CMCC No. 66 of 2017

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, "West Kenya Sugar Company Limited v Bushuru (Employment and Labour Relations Appeal E009 of 2022) [2023] KEELRC 549 (KLR)", Case Analysis (2023). Appeal from Kakamega CMCC No. 66 of 2017 (Memorandum of Appeal dated 1st April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/549/eng@2023-03-02

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