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ELRCPartially AllowedELRC Appeal dated 12th February 2018 (from SRM cause, judgment delivered 29th January 2018)· [2024] KEELRC 2069 (KLR)

Tononoka Rolling Mills Limited v Mutuku (Appeal 64 of 2023) [2024] KEELRC 2069 (KLR)

Employment and Labour Relations Court
26 July 2024
3,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant employer appealed against a judgment of the Senior Resident Magistrate (Hon. D.A. Ocharo) delivered on 29th January 2018, in which the Respondent, a rolling mill cleaner injured on 1st April 2015 when he stepped on metal, lost his balance and fell on a running fan (losing one and a half digits from each of his left index and middle fingers, with 15% permanent disability), was held 100% vicariously liable against the employer and awarded general damages of Kshs. 600,000/- and special damages of Kshs. 12,000/-. The appeal challenged liability, quantum and the award of unpleaded special damages. As a first appellate court, and guided by Selle v Associated Motor Boat Co., the judge re-evaluated the evidence. On liability, the court found the employer's assertions that it provided safety gear and training were bare and unproved, noting the record-keeping duties in s.74 Employment Act and s.8 WIBA and the occupier's duties under s.6 OSHA; the pleaded contributory negligence failed, and the trial finding of 100% liability was upheld. On quantum, applying Gicheru v Morton and comparable-injury authorities (Bivauna Construction; Pyramid Packaging), the general damages award of Kshs. 600,000/- was upheld as not inordinately high. However, special damages had to be specifically pleaded and strictly proved; only the receipted Kshs. 2,000/- medical report fee was sustainable, and the unpleaded Kshs. 10,000/- was removed. The appeal thus succeeded only to the limited extent that special damages were reduced to Kshs. 2,000/-. Costs of the appeal were awarded to the Respondent.

Key legal issues

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01

Liability for the workplace accident

Holding

The Appellant was 100% liable; its claim of contributory negligence failed for lack of proof

Reasoning

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.

p. 6
02

Quantum of general damages

Holding

Kshs. 600,000/- award upheld as neither excessive nor based on a wrong principle

Reasoning

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.

p. 7
03

Special damages

Holding

Only the pleaded and receipted Kshs. 2,000/- medical report fee proved; the unpleaded Kshs. 10,000/- court attendance fee was erroneously awarded

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Evidence ActSection 109
  • Employment Act No. 11 of 2007Section 74
  • Work Injury Benefits Act No. 13 of 2007Section 8
  • Occupational Safety and Health Act No. 15 of 2007Section 6
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (17)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    [1955] 22 E.A.C.A. 270
  • The German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR)
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Gicheru vs Morton and Another
    (2005) 2 KLR 333
  • Denshire Muteti Wambua Vs KPLC
    CA 60 of 2004
  • Kemfro Africa Ltd T/A Meru Express Service & Gathogo Kanini Vs A.M.M. Lubia & Another
    (1982-88) KAR 777
  • Lango vs Manyoka
    (1961) EA 705
  • Lukenya Ranching & Farming Co-operative Society Ltd Vs Kavoloto
    (1970) EA 414
  • Arrow Car Ltd vs Bimomo & 2 others
    (2004) 2 KLR 101
  • West Kenya Sugar Co Ltd vs Joseph Sore Shirambula
    [2021] eKLR
  • Peter Kibe Waweru vs Moses Maina
    [2022] eKLR
  • Pietro Canobbio vs Joseph Amani Hinzano
    [2016] eKLR
  • Bwauna/Bivauna Construction Ltd vs Joseph Karuri Mwangi
    Nakuru Civil Appeal Number 110 of 2006
  • Pyramid Packaging Limited vs Humphrey W. Wanjala
    [2012] eKLR
  • Herbert Hahn –vs- Amrik Singh
    (1982–88) 1 KAR 738
  • Corporate Insurance Co. Ltd. –Vs- Loice Wanjiru Wachira
    C.A. No. 151 of 1995
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

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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, "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.