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ELRCDismissedCivil Case no. 10920 of 2018 (appeal therein, memorandum of appeal dated 21st February 2024)· [2025] KEELRC 212 (KLR)

Dogra International Limited v Wanekaya (Appeal E033 of 2024) [2025] KEELRC 212 (KLR)

Employment and Labour Relations Court (first appellate court over Milimani Chief Magistrate's Court)
31 January 2025
4,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a Kshs. 750,000 work injury award, confirming employers who skip court or keep no employee records will likely lose.

What this practically means

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Executive summary

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This is a first appeal against the judgment and decree of Hon. Rawlings Liluma (SRM) of the Magistrate Court at Milimani Commercial Court delivered on 26th January 2024 in Civil Case no. 10920 of 2018, a work-injury suit. The trial court had found the employer 100% liable and awarded the claimant general damages of Kshs. 750,000, special damages of Kshs. 16,300, interest and costs. The appellant advanced three grounds: absence of proof of an employment contract, error in finding 100% liability merely because no defence evidence was called, and an inordinately high award of general damages. Jemimah Keli, J, framed three issues and, re-evaluating the evidence as a first appellate court, dismissed the appeal. On employment, the court held that parties are bound by their pleadings; the defence did not deny the employment relationship, so it was deemed admitted. Section 8 of the Employment Act recognises oral contracts, and the respondent's sworn evidence, the hospital invoice paid by cheque attributed to the appellant, and a County Occupational Safety and Health letter sufficed on a balance of probabilities; the employer's failure to produce records required under sections 74 and 79 of the Employment Act attracted an adverse inference. On liability, the respondent explained how the old, rusty, overused metal rod broke, and the employer bore responsibility for safe working space and equipment; the test in Kenya Power v Gachoka - that uncontroverted evidence must still establish fault - was met, so 100% liability stood. On quantum, the court found the trial court's reliance on Philip Mwago v Lilian Njeri Thuo apt, and applying inflation and the higher 15% permanent disability, held Kshs. 750,000 not excessive. The judgment was upheld, the appeal dismissed with costs to the respondent, and a stay of 30 days granted.

Key legal issues

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01

Proof of employment relationship

Holding

The respondent proved employment on a balance of probabilities; the defence did not deny employment in its pleadings and failed to produce statutory employment records, permitting an adverse inference.

Reasoning

The claim was an employment dispute founded on work injury. The defence statement did not deny the employment relationship, so it was deemed admitted as parties are bound by their pleadings. Section 8 of the Employment Act recognises oral contracts. The respondent gave sworn oral evidence of long employment, produced a hospital invoice paid by cheque attributed to the appellant and a Nairobi County Occupational Safety and Health letter on the injury. The employer, obliged under sections 74 and 79 to keep employee records, called no rebuttal evidence.

p. 5
02

100% liability for the work injury

Holding

The trial court's finding of 100% liability was not in error; the employer failed to provide a safe working space and equipment and called no rebuttal evidence.

Reasoning

The appellate court re-evaluated the evidence. The respondent explained that the metal rod which broke and injured his right hand was old, rusty and overused, and produced a medical report. The court held it was the employer's responsibility to provide a safe working space and equipment, and that the respondent discharged his burden of proof. The court applied the principle in Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka that uncontroverted evidence must still establish fault, and found the test met. No rebuttal evidence was called.

p. 7
03

Quantum of general damages (Kshs. 750,000)

Holding

The award was not inordinately high, being anchored on a comparable authority and adjusted for inflation and a higher permanent disability of 15%.

Reasoning

The medical report recorded a fracture of the right humerus with 15% permanent disability. The trial court relied on Philip Mwago v Lilian Njeri Thuo, where Kshs. 500,000 was upheld for a fractured humerus with 8% disability. The appellate court found that authority more comparable than those relied on by the appellant, and took into account inflation from 2019 to 2024 and the higher disability percentage, concluding the award was neither excessive nor an erroneous estimate.

p. 9

Legal principles established

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  • An employment contract need not be in writing; oral contracts of employment are recognised under section 8 of the Employment Act.
  • Parties are bound by their pleadings; an employer who does not deny the employment relationship in its defence cannot later contest it, and the fact is deemed admitted.
  • Where an employer fails to produce statutory employment records (sections 74 and 79 of the Employment Act) and calls no rebuttal evidence, an adverse inference may be drawn.
  • Uncontroverted evidence must still bring out the fault and negligence of a defendant; a plaintiff must prove its case on a balance of probability whether or not the evidence is challenged.
  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record before determining whether the trial court's conclusions should stand.

Court orders

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  1. 1.The Judgment and Decree of the Magistrate Court at Milimani Commercial Court delivered on 26th January 2024 in Civil Case no. 10920 of 2018 is upheld.
  2. 2.The appeal is dismissed with costs to the respondent.
  3. 3.Stay of 30 days is granted.

Authorities

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Legislation

  • Employment Actsection 8
  • Employment Actsection 9
  • Employment Actsection 10(7)
  • Employment Actsection 74(1)
  • Employment Actsection 79
  • Evidence Actsection 3
  • Evidence Actsection 62
  • Evidence Actsection 63 and 63(2)(c)
  • Evidence Actsections 107 and 108
  • Evidence Actsection 112

Cases cited (19)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] KECA 208 (KLR)
  • Casmur Nyankuru Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
  • Mutua Muasya v Meera Constructions Limited
    [2019] eKLR
  • Linus Nganga Kiongo & 3 others v Town Council of Kikuyu
    (2012) eKLR
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra and Another vs. Raju Govindji
    HCCC No. 548 of 1998
  • Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Karuru Munyororo vs. Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited vs. Nakuru Veterinary Centre Limited
    Nairobi (Milimani) HCCC No. 165B of 2000
  • Drappery Empire vs. The Attorney General
    Nairobi HCCC No. 2666 of 1996
  • Muchi Gachukia V Francis Ndirangu Njoroge & 2 Others
    [2019] eKLR
  • Kenya Power & Lighting Company Limited vs. Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Phillip Mwago v Lilian Njeri Thuo
    (2019) eKLR
  • Nyambura Kigaragari V Agrippina Mary Aya
    (1982-1988) 1 KAR
  • Maina Onesmus v Charles Wanjohi Githome
    [2019] eKLR
  • Said Abdullahi & another v Alice Wanjira
    [2016] eKLR
On appeal from
Magistrate Court at Milimani Commercial Court
Civil Case no. 10920 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Magistrate's Court in an employment-related work injury suit (memorandum of appeal dated 21st February 2024)

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, "Dogra International Limited v Wanekaya (Appeal E033 of 2024) [2025] KEELRC 212 (KLR)", Case Analysis (2025). Civil Case no. 10920 of 2018 (appeal therein, memorandum of appeal dated 21st February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/212/eng@2025-01-31

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