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ELRCDismissedNot stated in judgment· [2023] KEELRC 3449 (KLR)

Luania v Mitchell Cotts Freight (K) Limited (Cause 61 of 2017) [2023] KEELRC 3449 (KLR)

Employment and Labour Relations Court
23 November 2023
MMM. Mbarũ
1,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa work injury claim failed because the worker couldn't prove his injury happened on the job, even though employment itself was established.

What this practically means

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Executive summary

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The claimant sued the respondent alleging that on 7 June 2016, while working as a casual labourer loading fertilizer at the respondent's Changamwe go-down, a pallet collapsed causing him to fall and sustain a cut on his left elbow. He sought general damages, special damages of Kshs. 2,000 and costs, alleging negligence and breach of statutory duty, including failure to provide protective gear and a safe working environment. The respondent denied any employment relationship with the claimant and denied that any accident occurred, pleading contributory negligence. In evidence, the claimant testified and called Dr. Ajoni Adede, who examined him a week after the alleged accident and found the wound healed without disability. The respondent called an investigator, Benedict Mutua, whose unchallenged report found no record of the claimant among the casual labourers and established that the Ganjoni facility had no record of treating him and that the stamp on the treatment notes was fake. The court found that casual employment was permissible under Sections 7, 8 and 9 of the Employment Act, 2007, and that under Section 10(6) and (7) the employer was legally required to keep daily records of casuals for at least five years; absent such records, the claimant's casual employment on 7 June 2016 was established. However, the court held that the claimant failed to prove an injury linked to the respondent: his treatment records were discredited and he did not follow the ordinary practice of treatment at Coast General Hospital with a medical certificate under Sections 30 and 34 of the Employment Act. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant was a casual employee of the respondent

Holding

Yes - the court found the claimant was a casual employee on 7 June 2016 because the respondent produced no work records to challenge the employment

Reasoning

Casual employment is permissible under Sections 7, 8 and 9 of the Employment Act, 2007 for services not of a permanent nature. The employer has a statutory duty under Section 10(6) and (7) to record casual employees daily and keep records for at least 5 years. The respondent's investigator could not obtain the work records for 7 June 2016, so the claimant's assertion of casual employment stood unchallenged.

p. 3
02

Whether the claimant was injured in the course of employment with the respondent

Holding

No - the claim failed for want of proof linking the injury and treatment to the respondent

Reasoning

Although employment was established, the claimant's treatment notes from Ganjoni Health Development Committee were challenged by uncontroverted investigator evidence showing the facility had no record of him and the stamp was fake. The claimant did not follow the ordinary practice of treatment at Coast General Hospital with a medical certificate under Sections 30 and 34 of the Employment Act. The causal link to the respondent was therefore lost.

p. 4

Legal principles established

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  • Where an employer takes in casual employees, there is a legal duty to record such employees on a daily basis, and records must be kept for not less than 5 years under Section 10(6) and (7) of the Employment Act
  • Without work records to challenge a claimant's employment, the court may find casual employment established
  • A claimant bears the burden of proof in a claim for injury and damages under Section 107(1) of the Evidence Act

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSections 7, 8 and 9
  • Employment ActSections 10(6) and (7)
  • Employment Act, 2007Sections 30 and 34
  • Evidence ActSection 107(1)

Cases cited (4)

  • Evans Nyakwana v Cleopas Bwana Ongaro
    [2015] eKLR
  • Eastern Produce ltd v Mamboleo Khamadi
    [2015] eKLR
  • Buds and Bloom Ltd v Lawrence Emusugut Obwa
    [2016] eKLR
  • Kipkere Limited v Peterson Ondieki Tai
    [2016] eKLR

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, "Luania v Mitchell Cotts Freight (K) Limited (Cause 61 of 2017) [2023] KEELRC 3449 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3449/eng@2023-11-23

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