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ELRCPartially AllowedMCCC Cause No. E738 of 2016 (Appeal) - appeal number not stated in judgment

Friendship Containers Manufacturers Limited v Sibwoga & another (Appeal E295 of 2024) [2025] KEELRC 2794 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
16 October 2025
12,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed old workplace injury cases can still go to court, but shifted full liability to the employer and cut damages sharply.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. B.M. Cheloti (PM) delivered on 9th September 2024 in Nairobi MCCC Cause No. E738 of 2016, which had awarded the plaintiff Kshs. 3,311,880 (global general damages of Kshs. 3,000,000, loss of earnings of Kshs. 310,380 and special damages of Kshs. 1,500) jointly against the Appellant and the 2nd Respondent for a workplace injury sustained on 31st October 2013. The Appellant, the client/occupier under a labour outsourcing contract, challenged the trial court's jurisdiction under sections 16 and 23(1) of the Work Injury Benefits Act, its finding on liability, and quantum. The court, applying its earlier decision in Chenje v Kibo & Allied Industries, upheld the trial court's jurisdiction: the Chief Justice's Practice Directions of April 2023 (Kenya Gazette No. 5476) permitted claims filed after WIBA's commencement but before the Supreme Court's 3rd December 2019 decision in Law Society of Kenya v Attorney General to proceed to conclusion in the courts where filed, resting on legitimate expectation and access to justice under Articles 48 and 159(2)(d). On liability, the court found the duty to provide protective gear lay with the employer, the 2nd Respondent (Essential Management Consultancy Services Ltd), under the contract of employment; occupiers' liability was not pleaded and no nexus to the accident was proved. Joint liability was set aside and substituted with 100% liability on the 2nd Respondent. General damages were reduced to Kshs. 1,000,000 benchmarked on Kaluworks Limited v Nicholus Ngome Kombo, and the loss of earnings award was set aside as unproved. The appeal was partially successful; each party was ordered to bear its own costs, and 30 days' stay was granted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court had jurisdiction to hear and determine the work injury claim
  2. 2.Whether the Appellant owed the 1st Respondent a duty of care (liability)
  3. 3.Whether the quantum of damages awarded by the trial court was erroneous (general damages, loss of earnings and special damages)

Key legal issues

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01

Jurisdiction of the Magistrates' Court over pre-2019 WIBA claims

Holding

The trial court had jurisdiction; the Chief Justice's Practice Directions of April 2023 allowed claims filed after commencement of WIBA but before the Supreme Court decision of 3rd December 2019 to proceed to conclusion before the courts in which they were filed.

Reasoning

The claim was filed in 2016, after WIBA commenced but before the Supreme Court decision in Law Society of Kenya v Attorney General. The High Court's 2009 declaration of nullity of sections 16, 23(1) and 52 of WIBA created a legitimate expectation that claimants could lodge claims in court. The court adopted its earlier decision in Chenje v Kibo, holding the Practice Directions valid under the doctrine of necessity to promote access to justice, with no prejudice to the appellant.

p. 15
02

Whether the Appellant (occupier/client under the labour contract) was liable for the work injury

Holding

The Appellant was not liable; the duty to provide protective gear lay with the employer, the 2nd Respondent, under the contract of employment. Occupiers' liability was not pleaded and no nexus between the occupier's negligence and the accident was proved.

Reasoning

The contract of employment required the employer to provide the claimant with PPE; the claimant was not a party to the contract for services between the Appellant and the 2nd Respondent and could not invoke it. The trial court's reliance on the Occupiers Liability Act was against submissions, and no evidence showed any dangerous state of the premises or breach of an occupier's duty. Liability at 100% was substituted onto the 2nd Respondent.

p. 21
03

Quantum of general damages for pain, suffering and loss of amenities

Holding

The award of Kshs. 3,000,000 was set aside and substituted with Kshs. 1,000,000, benchmarked against Kaluworks Limited v Nicholus Ngome Kombo with allowance for inflation.

Reasoning

The trial court imposed a global figure without justification, contrary to the principle that awards must be guided by comparable precedent. The injuries (partial amputations of the distal phalanges of the right index and middle fingers, 1% incapacity) were comparable to but less severe than the amputations in Kaluworks, where Kshs. 800,000 was upheld in 2020.

p. 26
04

Loss of earnings

Holding

The award of Kshs. 310,380 for loss of earnings was set aside as unproved.

Reasoning

Loss of earnings is a special damage requiring specific pleading and strict proof. On cross-examination the claimant had no proof of dismissal, no medical or other proof of inability to work, and the claim for termination lay under the Employment Act against his employer, not the Appellant. A payslip proved earnings but not the loss.

p. 24

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation, and a gazette notice or practice direction cannot confer jurisdiction where none exists in statute.
  • Where an employer delegates performance of a task to an independent contractor, the employer is liable for the negligence of that other in the performance of the task (as relied on by the trial court from Selle v Associated Motor Boat Co.).
  • Loss of earnings is a special damage claim which must be specifically pleaded and strictly proved.

Court orders

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  1. 1.The claim is dismissed against the 2nd defendant
  2. 2.The claim for loss of earnings is dismissed
  3. 3.Judgment entered for the plaintiff against the 1st Defendant (Essential Management Consultancy Services Ltd) at liability 100%, general damages for pain and suffering and loss of amenities of Kshs. 1,000,000, and special damages of Kshs. 1,500
  4. 4.Interest at court rate on general and special damages plus costs from the date of judgment until payment in full
  5. 5.Each party to bear its own costs of the appeal
  6. 6.30 days stay granted

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi
MCCC Cause No. E738 of 2016
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts in work injury matters; court applied the Chief Justice's Practice Directions (Kenya Gazette No. 5476) issued under Articles 159(2) and 161(2)(a) of the Constitution, section 10 of the Judicature Act and sections 5(1), 2(c) and 27 of the Employment and Labour Relations Court Act

Relief refused

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Liability against the Appellant

The duty to provide protective gear lay with the employer (2nd Respondent) under the contract of employment; occupiers' liability was neither pleaded nor proved

p. 21

Claim for loss of earnings

Loss of earnings is a special damage claim that must be specifically pleaded and strictly proved; the claimant gave no proof of dismissal or inability to work

p. 24

Costs

The appeal was partially successful. Each party to bear own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot the Court allows the appeal. The Judgment and Decree of the Hon. B.M. Cheloti (PM) delivered on 9th September 2024 in Nairobi in MCCC Cause No. E738 of 2016 is set aside and substituted as follows
p. 26Disposition
Judgment is entered for the plaintifi against the 1st Defendant (Essential Management Consultancy Services Ltd ) as followsa. Liability 100%
p. 26Final orders - liability and judgment
The award of Kshs. 3,000,000 is set aside and substituted with an award for general damages for pain and sufiering and loss of amenities for Kshs. 1,000,000/- .
p. 26Substituted quantum
The joint liability is set aside and substituted with liability at 100% on the 2nd respondent.
p. 21Re-allocation of liability
The award for loss of earnings is set aside for lack of basis.
p. 24Loss of earnings
The appeal was partially successful. I order each party to bear own costs.
p. 26Costs order
it is trite that jurisdiction is donated to the courts by the Constitution and/or the statute which created them
p. 4Jurisdiction
Loss of earning is a special damage claim. It must be specifically pleaded and strictly proved.
p. 24Proof of special damages

Issues in the judgment

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minor

Internal inconsistency in liability reasoning: the court states the appeal 'succeeds on the issue of jurisdiction' within a passage where it actually rejects the appellant's jurisdiction challenge and upholds the trial court's jurisdiction

minor

The judgment states the appeal 'partially successful' yet opens the disposition with 'the Court allows the appeal', while liability was overturned against the Appellant, damages reduced, and loss of earnings dismissed

minor

Judgment internally misattributes the earlier decision, quoting Mugatsia's passage as if the appellant's suit was 'filed on the 9h May 2017' within the quoted text while the actual plaint is dated 10th February 2016

minor

The appeal number of the present appeal before the ELRC is not stated anywhere in the judgment

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, "Friendship Containers Manufacturers Limited v Sibwoga & another (Appeal E295 of 2024) [2025] KEELRC 2794 (KLR)", Case Analysis (2025). MCCC Cause No. E738 of 2016 (Appeal) - appeal number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2794/eng@2025-10-16

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