Rising Star Commodities Limited v Daniel Akwera [2016] KEELRC 589 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent was employed by the Appellant
- 2.Whether the Respondent was injured on the alleged date, in the course of employment
- 3.Whether the Trial Court erred in holding the Appellant liable on the basis of paragraph 4 of the Statement of Defence
- 4.Whether the Trial Court erred in accepting the Respondent's evidence notwithstanding the failure to produce the initial treatment notes and call their author
Key legal issues
#Burden of proving employment where the employer denies it
Once the Appellant denied the employment, the burden lay on the Respondent to establish he was engaged as a casual loader on the material date; the Respondent produced no document of engagement and his name was absent from the casual employees' list.
The Trial Court's finding of employment rested on paragraph 4 of the Defence, a without-prejudice alternative line of defence, which the Trial Court wrongly treated as an admission. DW1 and DW2 denied knowing the Respondent and the casual workers' lists did not include his name. The Court fully adopts the principle in Malelu Muthama v. Kay Construction Company Limited, a materially similar case.
Reliability of the Respondent's evidence on injury and treatment
The Respondent's evidence raised issues of truthfulness, credibility, consistency and reliability: treatment notes showed 26th October 2005 not the pleaded 25th October, he claimed only Kshs. 10 in medical expenses, the treating dispensary witness was not called, and Dr. Ashraph saw no injuries.
The initial treatment notes were never produced by their author, whose genuineness was disputed; the medical report was prepared years after treatment and based on the disputed notes; the doctor saw no scar. Together with the failed proof of employment, these flaws established fundamental defects in the Trial Court's judgment warranting reversal.
Legal principles established
#- Where employment is denied by the alleged employer, the employee must prove the fact of employment, and an alternative line of defence stated without prejudice is not an admission of employment
Court orders
#- 1.Appeal allowed
- 2.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court, Mombasa
- Mombasa SRMCC No. 176 of 2007
- Jurisdiction invoked
- Appeal transferred from the High Court to the Employment and Labour Relations Court on jurisdictional grounds
Relief refused
#Respondent's trial judgment award of general damages Kshs. 65,000, special damages Kshs. 5,000, costs and interest
Judgment set aside on appeal because the Respondent failed to prove employment and injury; fundamental flaws in the Trial Court's judgment
Costs
No order on the costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court fully adopts the principle in Malelu Muthama v. Kay Construction Company Limited.
The Court agrees with the submission of the Appellant that the Trial Court erred in law and fact by holding a statement made without prejudice, and as an alternative line of defence, to be an admission that the Respondent was an Employee of the Appellant.
These pieces of evidence raised issues of truthfulness, credibility, consistency and reliability, on the part of the Respondent and his entire case.
there were fundamental flaws in the Judgment of the Trial Court. The Appeal has merit and is allowed, with no order on the costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rising Star Commodities Limited v Daniel Akwera [2016] KEELRC 589 (KLR)", Case Analysis (2016). Employment and Labour Relations Court Appeal (Mombasa) — formerly Mombasa High Court Civil Appeal Number 222 of 2010, arising from Mombasa SRMCC No. 176 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/589/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.