Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (appeal from suit before Hon. S.K. Nyaga, RM at Murang'a)· [2024] KEELRC 1903 (KLR)

Gichuki v Lalji Ramji Filing Station Ltd & another (Employment and Labour Relations Appeal E10 of 2023) [2024] KEELRC 1903 (KLR)

Employment and Labour Relations Court
19 July 2024
4,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a burned tanker worker KShs 400,550 after an appeal court overturned a decision that had dismissed his work injury claim entirely.

What this practically means

#

Executive summary

#
The appellant, a co-driver employed by the respondents, suffered serious burns when motor vehicle KCB XXXX, a fuel tanker, was involved in an accident and burst into flames on 19th July 2016, killing his co-driver Charles Mwangi Kariuki. The trial court (Hon. S.K. Nyaga, RM) dismissed his negligence suit, heavily relying on an investigation report by a private investigator appointed by the respondents' insurer which suggested the appellant himself was driving. On appeal, which Wakiaga J transferred to the ELRC, the respondents challenged jurisdiction citing sections 16, 23 and 52 of WIBA. The court upheld its jurisdiction under section 12(1) of the ELRC Act and the Chief Justice's Practice Directions in Gazette Notice No.5476 of 2023, though it expressed doubt that the directions could override the Court of Appeal and Supreme Court decisions in Law Society of Kenya v Attorney General, and considered they should strictly apply only to claims filed before 17th November 2017. On the merits, the court re-evaluated the evidence as a first appellate court and found that the deceased, not the appellant, was driving, supported by the delivery note, the silent police abstract, and the absence of any eye witness to rebut the appellant's testimony. The deceased's driving at high speed on a road under construction amounted to negligence, making the respondents vicariously liable. The court allowed the appeal, set aside the trial judgment, and awarded general damages of Kshs.400,000 and special damages of Kshs.550, with costs of the appeal and lower court plus interest.

Key legal issues

#
01

Jurisdiction of the ELRC over the appeal

Holding

The court upheld jurisdiction, relying on the CJ's Practice Directions and section 12(1) of the ELRC Act, though it doubted the directions could override appellate decisions

Reasoning

The court doubted the Chief Justice's practice directions could overturn the Court of Appeal and Supreme Court decisions restoring section 16 WIBA, and considered they should apply only to claims filed before 17th November 2017. However, since the respondents did not challenge the directions, and section 12(1) of the ELRC Act confers unlimited original and appellate jurisdiction over employment disputes, the court proceeded to determine the appeal.

p. 6
02

Who was driving the vehicle at the time of the accident

Holding

The deceased, Charles Kariuki, was the driver; the appellant was the loader/co-driver

Reasoning

There was no eye witness or other evidence to rebut the appellant's testimony that the deceased was driving. The Delivery Note in the Investigation Report indicated Charles Mwangi as the driver, the Police Abstract did not identify the driver, and the investigating police officer was not called. The appellant's consistent account was accepted on a balance of probability.

p. 6
03

Vicarious liability and negligence

Holding

The respondents were vicariously liable because the deceased, their authorised driver acting in the course of employment, drove at high speed on a road under construction

Reasoning

The deceased was the respondents' authorised driver acting in the course of employment, raising the presumption of vicarious liability. The undisputed evidence that the tanker hit a stone and rolled four times supported the inference of high speed on a road under construction with stones and boulders on the shoulders, amounting to negligence.

p. 7
04

Quantum of damages

Holding

General damages of Kshs.400,000.00 and special damages of Kshs.550.00 awarded

Reasoning

The injuries (second degree burns to scalp, face and dorsal region) were unrebutted. The comparable authorities cited by the respondents involving second degree burns were preferred, adjusted for inflation and time passage. Special damages were pleaded at Kshs.550 and proved by a NTSA receipt, and were unopposed.

p. 8

Legal principles established

#
  • On a first appeal the court must re-evaluate the evidence and arrive at its own independent conclusions
  • Pleading that the driver was a servant of the defendant raises a presumption of vicarious liability, rebuttable by showing the servant was not driving in the course of employment
  • Negligence must be proved with cogent and credible evidence; it is not inferred from the mere occurrence of an accident

Court orders

#
  1. 1.The entire judgment of Hon.S.K.Nyaga RM delivered on 19th May 2020 is hereby set aside
  2. 2.Judgment is entered for the appellant against the respondents: General damages Kshs.400,000.00 and Special damages Kshs.550.00, total Kshs.400,550.00
  3. 3.Costs of the appeal and the lower court plus interest at court rates from the date of the judgment

Authorities

#

Legislation

  • Work Injury Benefits Act (WIBA)sections 16, 23 and 52
  • Employment and Labour Relations Court (ELRC) Actsection 12(1)
  • Evidence Actsections 107, 108 and 109
  • ELRC Procedure RulesRule 28(3)
  • Gazette Notice No.5476 (Chief Justice's Practice Directions on work injury claims)Direction 3

Cases cited (15)

  • Law Society of Kenya v Attorney General & another
    (2019) eKLR, Petition No.4 of 2019
  • Zhongmel Engineering Group Ltd v Joshua Ogamba Nyachiro
    (2023) KEERLC1165 (KLR)
  • Selle v Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua
    (2015) eKLR
  • Yunis Noor Mohamed Mangia v The AG
    (2004) eKLR
  • Lilian Otieno v Joseph K. Kimana
    NBI HCCC No.2670 of 1986 (UR)
  • Ngala Shedi v Jackson M. Nyambu
    MSA HCCC No.152 of 1992 (UR)
  • Joseph Muthee Kamau & another v David Mwangi Gichure & another
    (2013) eKLR
  • Caren Auma Oyugi Okwiri v Emergency Relief Supplies Ltd & another
    (2017) eKLR
  • James Nyaboga Masogo v Kipkebe Ltd
    (2007) eKLR
  • Crown Foods Ltd v Emily Wangui
    (2011) eKLR
  • Smokies Bar & Restaurant & another v Reuben Kieti
    (2015) eKLR
  • Eldoret Steel Mills Ltd v George Ochieng Owino
    (2011) eKLR
  • Commissioner of Transport v T.R Gohil
    (1959) EA 936
  • Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another
    (2010) eKLR
On appeal from
Magistrate's Court (Murang'a)
Not stated
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act; Gazette Notice No.5476 of 28th April 2023 (Chief Justice's Practice Directions)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gichuki v Lalji Ramji Filing Station Ltd & another (Employment and Labour Relations Appeal E10 of 2023) [2024] KEELRC 1903 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from suit before Hon. S.K. Nyaga, RM at Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1903/eng@2024-07-19

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