Colour Packaging Limited v Julius Nyerere Musili [2020] KEELRC 1908 (KLR)
The bottom line
#An employer who claims a worker left employment must prove it with records — otherwise it stays liable for the worker's injuries.
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 Learned Magistrate erred in law and in fact by holding that there was an employment relationship between the Appellant and the Respondent
- 2.Whether the Learned Magistrate erred in law and in fact for finding the Appellant wholly liable for the Respondent's injury
- 3.Whether the orders sought by the Appellant should be granted
Key legal issues
#Whether an employment relationship existed between the Appellant and the Respondent at the time of the injury
Yes - the pay slip, absence of rebuttal evidence, and the Appellant's failure to prove termination of employment sustained the finding of employment at the time of injury
The Respondent annexed a pay slip for August 2013 whereas the injury occurred in May 2014, but the Appellant produced no evidence showing the employment relationship had ceased. The Appellant never stated the Respondent had left employment or when, and its defence was mere denials. The burden under Section 109 of the Evidence Act lay on the Appellant to prove that fact. The Magistrate's finding was therefore sound.
Whether the Appellant was wholly liable for the Respondent's injury
Yes - the machine was defective, the employer failed to provide gloves despite requests, and no evidence of contributory negligence or reasonable care was adduced
The Respondent testified that the machine he was operating was defective and that despite requests the Appellant failed to provide gloves, contrary to the employer's statutory obligation under Section 101(1) of the Occupational Safety and Health Act, 2007. The Appellant did not controvert this testimony or adduce evidence of contributory negligence, so the facts in its defence remained mere allegations, and the 100% liability apportionment could not be faulted.
Legal principles established
#- An employer, as custodian of employment records, bears the evidential burden of showing when an employment relationship ceased; failure to adduce evidence of termination leaves its defence as mere allegations
- An employer must provide and maintain adequate protective clothing and appliances, including gloves, for employees exposed to injurious substances (Section 101(1) of the Occupational Safety and Health Act, 2007)
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The Respondent is awarded costs in this appeal
- 3.The Respondent is awarded costs in the subordinate court
- 4.The Respondent is awarded interest in both this appeal and in the subordinate court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mavoko Law Courts (Principal Magistrate's Court)
- CMCC 298 of 2016
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court transferred to this Court pursuant to the ruling of Odunga J delivered on 18th November 2019 (Machakos High Court Civil Appeal 125 of 2017)
Relief refused
#Allowance of the appeal and setting aside of the subordinate court judgment with dismissal of the suit
The court found the Magistrate's findings on employment and liability sound; the Appellant, as custodian of employment records, adduced no evidence that employment had ceased and its defence consisted of mere denials
Costs
The Respondent is awarded costs and interest in both this appeal and in the subordinate court.
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.
Being the custodian of the employment records, the Appellant ought to have produced evidence showing when the employment relationship between it and Respondent ceased.
The appeal is therefore dismissed in its entirety. The Respondent is awarded costs and interest in both this appeal and in the subordinate court.
By failing to do so, the facts alluded to in the defence remained mere allegations.
Issues in the judgment
#The judgment does not state the name of the Appellant company or the Respondent, identifying parties only by role
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Colour Packaging Limited v Julius Nyerere Musili [2020] KEELRC 1908 (KLR)", Case Analysis (2020). Employment and Labour Relations Court Appeal from Mavoko CMCC 298 of 2016 (transferred from Machakos High Court Civil Appeal 125 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1908/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.