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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1917 (KLR)

S. S. Mehta & Sons Limited v Dida (Appeal 13 of 2023) [2023] KEELRC 1917 (KLR)

Employment and Labour Relations Court (delivered at Mombasa)
13 July 2023
MMM. MBARŨ
2,037 words in judgment
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The bottom line

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Kenya's Employment Court halved a worker's Ksh.2 million injury compensation to Ksh.1 million, confirming work injury claims should now go through WIBA.

What this practically means

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Executive summary

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This is a first appeal to the ELRC at Mombasa (M. Mbarũ, J) against the decision of the chief magistrate's court in Civil Case No. 1571 of 2017, in which the respondent recovered Ksh.1,961,960 for work injuries (loss of right eye, head injuries and skull fractures) suffered on 29 August 2012 when a tyre burst while he operated a compressing machine. The appellant attacked the suit as time barred under section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act, contended the magistrate lacked jurisdiction as the claim should have proceeded under WIBA before the Director of Occupational Safety and Health Services, and submitted the damages award of Ksh.2,000,000 was excessive and the 10%:90% liability apportionment against the weight of evidence. The court, sitting as a first appellate court by way of rehearing per Selle v Associated Motor Boat Co., upheld the trial court's jurisdiction: the respondent had obtained leave to file out of time on 17 October 2017 under order 37 rule 6(1) of the Civil Procedure Rules and section 27 of the Limitation of Actions Act, and prior to the Supreme Court's decision in Law Society of Kenya v Attorney-General work injury claims were routinely filed as ordinary suits; section 90 of the Employment Act was a misnomer. The court, however, found the general damages award excessive, relying on comparable authorities, and reduced it from Ksh.2,000,000 to Ksh.1,000,000 on the retained 10%:90% apportionment. The appeal was partially successful, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction and limitation in work injury claims

Holding

The magistrate had jurisdiction because the respondent had obtained leave to file out of time under order 37 rule 6(1) of the Civil Procedure Rules and section 27 of the Limitation of Actions Act, and prior to the Law Society of Kenya decision work injury claims were filed as ordinary suits; section 90 of the Employment Act was inapplicable.

Reasoning

The accident occurred in 2012 and suit was filed in 2017 after leave was granted on 17 October 2017. The court traced the litigation culminating in Law Society of Kenya v Attorney-General and the Chief Justice's Practice Directions of 24 April 2023, noting WIBA creates an ADR-first mechanism but pending claimants had a legitimate expectation their cases would conclude under the judicial process invoked.

p. 3
02

Excessive award of general damages

Holding

The award of Ksh.2,000,000 was set aside and substituted with Ksh.1,000,000, guided by comparable awards for loss of eye, skull fractures and head injuries.

Reasoning

Awards in work injury claims are discretionary and must be justified on evidence and sound legal principles. The trial magistrate adopted the respondent's proposal without adequate reasons. Comparable authorities (awards of Ksh.850,000, Ksh.500,000 and Ksh.1,000,000 for similar injuries) supported Ksh.1,000,000 as appropriate.

p. 4

Legal principles established

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  • A first appeal is heard by way of rehearing on both law and fact
  • All claims emanating from the shop floor and relating to work injury ought to commence under the mechanism outlined under WIBA
  • An appellate court will not interfere with judicial discretion unless the trial court misdirected itself or was clearly wrong

Court orders

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  1. 1.The appeal partially succeeds on the award of general damages
  2. 2.The lower court's award of general damages of Ksh.2,000,000 is set aside and substituted with Ksh.1,000,000 general damages
  3. 3.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1), section 27
  • Employment Actsection 90
  • Occupational Safety and Health Actsection 13(1)
  • Work Injury Benefits Act (WIBA)sections 16, 23, 52, 58(2)
  • Civil Procedure Rulesorder 37 rule 6(1)
  • Judicature Act - Practice Directions Relating to Pending Court Claims Regarding Compensation for Work Related Injuries and Diseases (Gazette Notice No.5476 of 24 April 2023)Chief Justice Practice Directions

Cases cited (9)

  • South Nyanza Sugar Company Limited v Joshua Aloo Aloo
    [2021] eKLR
  • Law Society of Kenya v Attorney General & another
    [2019] eKLR (Petition No. 4 of 2019)
  • Elizabeth O Odhiambo v South Nyanza Sugar Co Limited
    [2019] eKLR
  • Selle versus Associated Motor Boat Co.
    [1968] EA 123
  • George Kimotho Ilewe v Joseph Mathuku Ngewa & another
    [2022] eKLR
  • Stephen Mwallyo Mbondo v County Government of Kilifi
    [2021] eKLR
  • Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna
    [2022] eKLR
  • GA (Minor suing thro’ her father and next friend BZ) v Paul Muthiku
    [2020] eKLR
  • Isaac Waweru Mundia v Kiilu Kakie Ndeti T/A Wikwatyo Services
    Machakos HCCA No. 312 of 2009
On appeal from
Mombasa Magistrates Court
Civil Case No. 1571 of 2017
Jurisdiction invoked
First appeal from the magistrates' court in a work injury claim (statute not expressly cited; appeal by way of rehearing)

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, "S. S. Mehta & Sons Limited v Dida (Appeal 13 of 2023) [2023] KEELRC 1917 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1917/eng@2023-07-13

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