West Kenya Sugar Company Limited v Milimo (Employment and Labour Relations Appeal E004 of 2022) [2023] KEELRC 938 (KLR)
The bottom line
#Kenya's High Court upheld an employer's fault for a cane-loading injury but cut the worker's damages, confirming employers must keep and produce accident registers.
What this practically means
#Executive summary
#Key legal issues
#Liability of the employer for the workplace accident
The trial magistrate correctly found the appellant liable; the statutory duty to provide a safe working environment and protective gear was breached by having the respondent load wet, slippery cane on top of a truck barefooted and without a helmet. The 20:80 apportionment against the respondent was upheld as the duty is not absolute.
The court found proof of employment and treatment at Mukumu Hospital on 3 June 2015, corroborated by PW2 and the medical report of Dr. Aluda. The defence documents were unauthenticated and the accident register, despite a notice to produce, was not produced, attracting an adverse presumption. As occupier under the Occupational Safety and Health Act, the appellant breached section 6 duties. However, the employee's failure to exercise care justified the 20% apportionment.
Whether the general damages award of Kshs 130,000 was excessive
Yes. The trial magistrate erred in failing to compare recent past awards; applying the comparable-injuries principle and the Ndungu Dennis award, general damages were reduced to Kshs 80,000.
The court accepted the Butt v Khan principles for interference with quantum but found the trial court erred by not comparing past awards. The Khamoni decision of 2005 was too old for comparability. Ndungu Dennis (February 2018), involving more severe but comparable soft tissue injuries with a reduced award of Kshs 100,000, was the appropriate comparator, justifying reduction of the Kshs 130,000 award to Kshs 80,000.
Production of the accident register by an employer disputing an accident
An employer disputing that an employee was injured on duty must produce the accident register for the relevant period; failure to do so despite notice to produce supports the employee's case.
The court adopted the Kebirigo Tea Factory principle that where an employer denies the employee was injured on duty, it is incumbent on the employer to produce the accident register to disprove the claim. The appellant failed to comply despite notice to produce, and its defence exhibits were unsigned, uncertified and thus unreliable.
Legal principles established
#- The duty of the first appellate court is to re-evaluate the evidence in the subordinate court on points of law and fact and come up with its own findings and conclusions.
- An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence.
- Comparable injuries should, as far as possible, be compensated by comparable awards; failure to consider recent comparable awards is an error justifying interference with quantum.
- The relationship of employer and employee creates a duty of care to provide a safe system of work, but that duty is not absolute and liability may be apportioned where the employee fails to exercise caution.
Court orders
#- 1.Appeal allowed on quantum only; award of general damages of Kshs 130,000 set aside and substituted with Kshs 80,000.
- 2.Liability apportionment of 20:80 in favour of the Respondent upheld.
- 3.Special damages of Kshs 3,000 upheld as unchallenged.
- 4.Net substituted award of Kshs 67,000 (80/100 x 80,000 plus 3,000) plus costs and interest from the date of judgment in the lower court.
- 5.No costs of the appeal; each party to bear own costs.
- On appeal from
- Butali Senior Resident Magistrate's Court
- SRMCC No. 107 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court decision (appeal against liability and quantum in a negligence/personal injury suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Milimo (Employment and Labour Relations Appeal E004 of 2022) [2023] KEELRC 938 (KLR)", Case Analysis (2023). Appeal from Butali SRMCC No. 107 of 2015 (Memorandum of Appeal dated January 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/938/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.