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ELRCPartially AllowedMachakos CMCC No. 448 of 2013 (appeal therefrom)· [2024] KEELRC 1515 (KLR)

New Wide Garments EPZ (K) Limited v Kioko (Employment and Labour Relations Appeal 4 of 2022) [2024] KEELRC 1515 (KLR)

Employment and Labour Relations Court
6 June 2024
2,881 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court threw out a workplace injury claim because the worker couldn't prove she was actually injured at work.

What this practically means

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Executive summary

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The Appellant, New Wide Garments EPZ (K) Limited, appealed against a judgment of the Machakos Chief Magistrate's Court delivered on 18th May 2017 in CMCC No. 448 of 2013, in which the Respondent, who had sued as plaintiff, was awarded Kshs 300,000 general damages and Kshs 7,500 special damages plus costs and interest for a workplace accident she alleged caused her to suffer an involuntary abortion. The Appellant's appeal contended that the trial court's findings were unsupported by evidence, ignored glaring discrepancies in the Respondent's documents and testimony, and wrongly shifted the burden of proof onto the defence. The appeal had been transferred from the Machakos High Court to this court on grounds of jurisdiction by a ruling of Hon. Justice G.V Odunga delivered on 5th May 2022. Hearing the appeal, the court re-evaluated the evidence afresh as a first appellate court while bearing in mind it had not seen or heard the witnesses. It identified a single issue: whether the Respondent proved her claim on a balance of probabilities. The court found serious unexplained discrepancies: the plaint was amended to change the accident date after the defence showed the original date was a Sunday; the medical report and hospital receipt bore unexplained handwritten alterations; the discharge summary was issued a day after discharge; the clocking card showed the Respondent absent from 1st to 12th February 2011; and documents suggested she may have carried her pregnancy to full term. Holding that the Respondent failed to discharge the burden under sections 107, 108 and 109 of the Evidence Act, the court allowed the appeal, set aside the trial judgment, dismissed the suit with costs, and awarded the Appellant costs of the appeal.

Key legal issues

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01

Whether the Respondent proved on a balance of probabilities that she sustained injuries at the Appellant's premises on 3rd February 2011 or any other date, and that she aborted as a result

Holding

The appeal succeeded; the Respondent did not discharge the burden of proof and the trial court's judgment was set aside with the suit dismissed

Reasoning

The court re-evaluated the evidence afresh as a first appellate court. It found serious discrepancies: the plaint originally alleged injury on 6th February 2011 (a Sunday) and was amended after the defence noted the date; the medical report and hospital receipt bore unexplained handwritten date amendments; the discharge summary was issued a day after discharge; the clocking card showed absence from 1st to 12th February 2011; and documents suggested the Respondent may have carried her pregnancy to full term.

p. 5
02

Whether the trial magistrate erred in casting the burden of proof on the Appellant

Holding

The burden of proof lay on the Respondent under sections 107, 108 and 109 of the Evidence Act; the trial court's suggestion that the defence should have called witnesses to disprove the accident misplaced that burden

Reasoning

The Appellant relied on section 107(1) and section 109 of the Evidence Act and cited authorities to the effect that the plaintiff bears the burden of proving her case on a balance of probabilities. The court invoked the statutory provisions and found the Respondent had not discharged that burden, there being serious doubt whether she was at work on the material dates or suffered any injury at all.

p. 6

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh with a view to reaching its own decision, while exercising caution since it did not see or hear the witnesses
  • The burden of proof in a civil claim lies on the party who asserts the facts, per sections 107, 108 and 109 of the Evidence Act, and the burden does not shift to the opposing party merely because it could have called witnesses

Court orders

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  1. 1.The judgment delivered by the learned magistrate on 18th May 2017 in Machakos CMCC No. 448 of 2013 is set aside and substituted with an order dismissing the suit with costs
  2. 2.The Appellant is awarded costs of this appeal
On appeal from
Machakos Chief Magistrates Court
CMCC No. 448 of 2013
Jurisdiction invoked
First appellate jurisdiction following transfer from the High Court by a ruling of Hon. Justice G.V Odunga delivered on 5th May 2022 on grounds of jurisdiction (specific statute/article not stated in the judgment)

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, "New Wide Garments EPZ (K) Limited v Kioko (Employment and Labour Relations Appeal 4 of 2022) [2024] KEELRC 1515 (KLR)", Case Analysis (2024). Machakos CMCC No. 448 of 2013 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1515/eng@2024-06-06

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