Tononoka Rolling Mills Limited v Mutuku (Appeal 64 of 2023) [2024] KEELRC 2069 (KLR)
The bottom line
#Kenya's Employment Court upheld a factory worker's full award against Devki Steel Mills, ruling employers must prove workers got safety gear through records, not just say so.
What this practically means
#Executive summary
#Key legal issues
#Liability for the workplace accident
The Appellant was 100% liable; its claim of contributory negligence failed for lack of proof
The court found the employer gave only bare assertions that it supplied gloves and training, producing no records despite statutory duties to keep them under s.74 Employment Act and s.8 WIBA. Section 6 of OSHA imposes safety duties on occupiers. Both the claimant's and the employer's witness accounts showed the claimant stepped on metal/plate and fell on the fan; the alleged wet-floor negligence of the claimant was not established.
Quantum of general damages
Kshs. 600,000/- award upheld as neither excessive nor based on a wrong principle
The magistrate relied on comparable authorities involving amputation of multiple phalanges with similar degrees of disability (Bivauna Construction - Kshs. 500,000 at 10% disability; Pyramid Packaging - Kshs. 650,000). Applying Gicheru v Morton and Kemfro Africa principles, the court found no wrong principle or erroneous estimate and declined to interfere.
Special damages
Only the pleaded and receipted Kshs. 2,000/- medical report fee proved; the unpleaded Kshs. 10,000/- court attendance fee was erroneously awarded
Special damages must be specifically pleaded and strictly proved. The Kshs. 2,000/- fee for the medical report was pleaded and proved by official receipt, but the Kshs. 10,000/- attendance fee was not pleaded and could not be awarded. The court reduced special damages from Kshs. 12,000/- to Kshs. 2,000/-, being the sole success of the appeal.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and come to its own independent findings, though making allowance for not having seen or heard the witnesses
- An appellate court may disturb a damages award only where the trial judge acted on a wrong principle or the amount is so high or low as to be an entirely erroneous estimate
- Special damages must be specifically pleaded and strictly proved
- The employer bears the burden of proving provision of safety gear and training, aided by its statutory record-keeping obligations
Court orders
#- 1.Appeal dismissed except to the limited extent that special damages of Kshs. 12,000/- awarded by the trial court are reduced to Kshs. 2,000/-
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Senior Resident Magistrate's Court (Hon. D.A. Ocharo, SRM)
- not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment in a negligence claim founded in employment (ELRC appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tononoka Rolling Mills Limited v Mutuku (Appeal 64 of 2023) [2024] KEELRC 2069 (KLR)", Case Analysis (2024). ELRC Appeal dated 12th February 2018 (from SRM cause, judgment delivered 29th January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2069/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.