Gichuki v Lalji Ramji Filing Station Ltd & another (Employment and Labour Relations Appeal E10 of 2023) [2024] KEELRC 1903 (KLR)
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
#Key legal issues
#Jurisdiction of the ELRC over the appeal
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
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.
Who was driving the vehicle at the time of the accident
The deceased, Charles Kariuki, was the driver; the appellant was the loader/co-driver
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.
Vicarious liability and negligence
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
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.
Quantum of damages
General damages of Kshs.400,000.00 and special damages of Kshs.550.00 awarded
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.
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.The entire judgment of Hon.S.K.Nyaga RM delivered on 19th May 2020 is hereby set aside
- 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.Costs of the appeal and the lower court plus interest at court rates from the date of the judgment
- 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.