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ELRCPartially AllowedHigh Court Civil Appeal No. 472 of 2016 (transferred to the Environment and Land and Labour Relations jurisdiction)· [2023] KEELRC 2239 (KLR)

Tononoka Rolling Mills Limited v Peter (Employment and Labour Relations Appeal 95 of 2022) [2023] KEELRC 2239 (KLR)

High Court of Kenya (first appellate court over the magistrates' court; transferred from the High Court)
18 September 2023
OKOcharo Kebira
4,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's High Court upheld full employer liability for a workplace injury but cut the damages award to KShs.120,000 because the injuries were exaggerated.

What this practically means

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Executive summary

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This is a first appeal against the judgment of a Milimani Principal Magistrate delivered on 21st September 2018, in which the Respondent employee had been awarded general damages of KShs.200,000/- and special damages of KShs.2,000/- for a workplace accident of 11th August 2014, with liability placed 100% on the employer. The Appellant employer challenged the finding on liability and the quantum, contending that no accident occurred and, in the alternative, that the award was excessive and should be reduced to KShs.60,000/-. Ocharo Kebira J framed a single issue: whether the trial magistrate was entitled to his conclusions on liability and quantum. On liability, the court held that the Appellant's failure to produce the statutorily mandatory general register under section 122 of the Occupational Safety and Health Act, despite its witness confirming its existence, warranted an adverse inference, and concluded that an accident did occur. The employer's own witness conceded the possibility of metal 'jumping' from the machine; the Appellant adduced no evidence to rebut breach of statutory duty nor to prove the negligence it had pleaded against the Respondent, so the 100% liability finding stood and no apportionment was warranted. On quantum, the court found the trial magistrate had ignored the defence medical report recording burns only, healed without permanent disability, and the Respondent's concession that he suffered no cuts; the injuries were exaggerated. The appeal was allowed only to the extent that general damages were reduced to KShs.120,000/-, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether a workplace accident occurred on 11th August 2014

Holding

An accident did occur; the Appellant's failure to produce the mandatory injury register or an extract justified an adverse inference that its production would have supported the Respondent's case

Reasoning

The occupier is statutorily obliged under section 122 of the Occupational Safety and Health Act to keep a general register recording every accident. The Appellant's witness confirmed the register's existence but did not produce it or an extract despite it being essential to the defence that no accident occurred. Without any reasonable explanation for non-production, the court was entitled to infer the register would not have aided the Appellant and concluded the accident occurred as alleged.

p. 5
02

Whether the Appellant was liable in negligence and/or breach of statutory duty and whether liability should be apportioned

Holding

The trial magistrate correctly found the Appellant 100% liable; no apportionment was possible because the Appellant led no evidence to establish the negligence it had pleaded against the Respondent

Reasoning

The employer owed statutory duties under section 6 and Part VII (Machinery Safety) of the Occupational Safety and Health Act. The Respondent's account of a machine malfunction was consistent and unshaken in cross-examination, and the Appellant's own witness conceded the possibility of metal 'jumping' from the machine. The Appellant, fixated on denying the accident, adduced no evidence to rebut breach or to prove the contributory negligence it had pleaded, so no basis for apportionment existed.

p. 7
03

Whether the award of general damages of KShs.200,000/- was excessive

Holding

The award was excessive; the trial magistrate failed to consider the second medical report and the Respondent's concession that he suffered no cuts, indicating the pleaded injuries were exaggerated

Reasoning

The appellate court applied the Kemfro Africa principles that an appellate court interferes with quantum where the trial court took into account an irrelevant factor, left out a relevant one, or made a wholly erroneous estimate. Here the trial magistrate did not consider the defence medical report by Dr. Edwin Madhiwa, which recorded burns only, healed without permanent disability, nor the Respondent's cross-examination concession of no cut wounds. The injuries were therefore exaggerated and the award reduced to KShs.120,000/-.

p. 8

Legal principles established

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  • A first appellate court must subject the evidence to fresh and exhaustive scrutiny and draw its own conclusions while allowing for the fact it neither saw nor heard the witnesses
  • Where an occupier fails without explanation to produce a statutorily mandatory workplace register essential to its case, an adverse inference will be drawn against it
  • A party who fails to present evidence on a point essential to its case, absent explanation, attracts an unfavourable inference in civil cases
  • An employer's breach of statutory safety duties under the Occupational Safety and Health Act resulting in employee injury attracts liability

Court orders

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  1. 1.The appeal is allowed only to the extent that the damages awarded by the Learned Trial Magistrate are reduced to KShs.120,000/-
  2. 2.The award on general damages of KShs.200,000/- is set aside and substituted with KShs.120,000/-
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Occupational Safety and Health ActSection 6(1) and (2)
  • Occupational Safety and Health ActSection 122
  • Occupational Safety and Health ActSection 3; Part VII (Machinery Safety); preamble
  • Evidence Act, Cap 80 Laws of KenyaSection 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (10)

  • Statpack Industries vs. James Mbithi Munyao
    NBI HCCA No. 152 of 2003 (2005) eKLR
  • Ndungu Dennis vs. Ann Wangari Ndirangu & Another
    (2018) eKLR
  • Devki Steel Mills Ltd vs. Jared Osodo
    [2014] eKLR
  • Oluoch Eric Gogo vs. Universal Corporation Limited
    (2015) eKLR
  • Mumias Sugar Co. Ltd vs. Charles Namatiti
    CA 151 of 1987
  • Kemfro Africa LTD t/a Meru Express Services and Another -vs- Lubia & Another (No.2)
    (1985) eKLR
  • Prudential Assurance Company of Kenya Limited (citing Selle v Associated Motor Boat Company Limited [1968] EA 123)
  • Vitalis Juma Odera vs Sino-hydro Company Limited
    (2017) eKLR
  • Boniface Muthema Kavita vs Carton Manufacturers Limited
    Civil Appeal No. 670 of 2003 (2015) eKLR
  • Selle v Associated Motor Boat Company Limited
    [1968] EA 123
On appeal from
Milimani Commercial Magistrate's Court
Civil Case No. 6468 of 2016
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (appeal originally filed in the High Court as Civil Appeal No. 472 of 2016 and transferred to this court)

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, "Tononoka Rolling Mills Limited v Peter (Employment and Labour Relations Appeal 95 of 2022) [2023] KEELRC 2239 (KLR)", Case Analysis (2023). High Court Civil Appeal No. 472 of 2016 (transferred to the Environment and Land and Labour Relations jurisdiction). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2239/eng@2023-09-18

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