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High CourtDismissedNot stated in the judgment as provided

Appellant v Respondent (Employer's liability appeal from Naivasha Principal Magistrate's Court)

High Court of Kenya
25 June 2020
RMRichard Mwongo
1,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Employers cannot use their own incomplete records to deny an employee's injury claim, and courts respect damage awards unless they are clearly wrong.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court in an employer's liability claim arising from an accident on 9th July 2006 at the appellant's rose flower farm in Naivasha. The respondent, while transporting flowers, stepped on a weak wooden foot bridge which collapsed, dropping him into a trench and injuring his right hip joint. The trial court found the employer liable, attributed 20% contributory negligence to the plaintiff, and awarded general damages of Kshs 60,000 and special damages of Kshs 2,000, subject to the 20% reduction. The appellant appealed against both liability and quantum, contending there was no proof the plaintiff was at work or injured on the material day, that the defendant's submissions were ignored, and that the award was excessive. Mwongo J, applying the Selle v Associated Motor Boat standard of fresh and exhaustive scrutiny, found the trial magistrate's liability findings sound. The employer's own records - the muster roll, clinic card and accident register - were kept solely by the employer and did not disprove the plaintiff's attendance; the supervisor admitted being on duty that Sunday without any record, and the court held the defence could not approbate and reprobate. The unrebutted medical evidence from Naivasha Hospital corroborated the injury. On quantum, the court applied H. West & Son v Shephard and Mbogo v Shah, holding that an appellate court should not interfere with a discretionary award absent proof it was clearly wrong; the appellant had cited no comparable-injury authorities. The appeal was dismissed on all grounds with costs to the respondent. The judgment was delivered by video-conference on 25th June 2020 due to COVID-19 restrictions.

Key legal issues

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01

Proof of the plaintiff's presence at work and the occurrence of the accident

Holding

On balance the plaintiff was at work on the material day and was injured on a faulty wooden bridge; the trial magistrate's finding on liability was upheld.

Reasoning

The supervisor admitted he was on duty that Sunday without any record proving it, while the employer's own clinic card and accident register - records kept solely by the employer - did not record the injury. The court held the employer could not approbate and reprobate, and that its records were incomplete, inaccurate or not credible. Medical evidence from Naivasha Hospital corroborated treatment on 9/7/2006 and was unrebutted.

p. 2
02

Contributory negligence of 20%

Holding

The trial magistrate's finding that the plaintiff, who saw the bridge in day-time, should shoulder 20% of the blame was upheld.

Reasoning

The trial magistrate found the plaintiff got injured on a faulty wooden bridge but, since it was day-time and he saw the bridge, he was in a position to see the weakness. The appellate judge saw no reason to fault that finding and the plaintiff had not availed any.

p. 2
03

Quantum of general damages

Holding

The award of Kshs 60,000 general damages was not manifestly excessive and the appellate court would not interfere.

Reasoning

The appellant attached authorities without comment and specified no decisions with comparable injuries. Assessment of damages is discretionary; an appellate court ought not to interfere merely because it would have made a different award, per H. West & Son Ltd v Shephard and Mbogo v Shah. The Bildad Onditi award of Kshs 350,000 for a more severe hip dislocation gave only an inkling for serious hip injury.

p. 2

Legal principles established

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  • A first appellate court must conduct a fresh and exhaustive scrutiny of the evidence and come to its own conclusions, while bearing in mind it did not see or hear the witnesses first hand.
  • An appellate court will not interfere with the exercise of discretion by an inferior court on damages unless the decision is clearly wrong, having misdirected itself or acted on or failed to consider relevant matters.

Court orders

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  1. 1.The appeal is dismissed on all its grounds
  2. 2.Costs of the appeal to the respondent
  3. 3.A signed copy of the judgment to be scanned and availed to the parties and relevant authorities with the High Court seal affixed by the Deputy Registrar/Executive Officer, Naivasha
  4. 4.A printout of the parties' written consent to delivery of the judgment to be retained as part of the court record
On appeal from
Principal Magistrate's Court, Naivasha
null
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decree (civil appeal from the magistrates' court)

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, "Appellant v Respondent (Employer's liability appeal from Naivasha Principal Magistrate's Court)", Case Analysis (2020). Not stated in the judgment as provided. Source:

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