Devki Steel Mills Limited v Wambua & another (Appeal 51 of 2018) [2023] KEELRC 2049 (KLR)
The bottom line
#Kenya's Employment Court confirmed you can only sue your actual employer for workplace injuries, setting aside a wrongful judgment against the wrong party.
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 appellant was liable in tort to the 1st respondent given the absence of an employer-employee relationship
- 2.Whether the trial magistrate erred in apportioning 90% liability to the appellant
- 3.Whether the award of Kshs.400,000/= in general damages for pain and suffering was manifestly excessive
Key legal issues
#Existence of employer-employee relationship as a precondition for liability
The trial court erred in holding the appellant liable because the evidence established the 1st respondent was employed by the 2nd respondent, not the appellant.
The court reviewed the trial record, noting the 1st respondent's own evidence that he was employed by the 2nd respondent (Jokali) and that Jokali took him to work for the defendant and to hospital. On that evidence there was no employer-employee relationship between the appellant and the 1st respondent, so the trial court's finding of liability against the appellant was unsupported and erroneous.
Evidence at variance with pleadings
Counsel for the appellant submitted that evidence at variance with pleadings should be disregarded, relying on IEBC & Another -vs- Stephen Mutinda Mule.
The appellant's counsel argued that the respondent's testimony that supervisors were from the appellant contradicted his pleaded case that he worked under the directions of the 2nd respondent, citing IEBC & Another -vs- Stephen Mutinda Mule & three others [2014] eKLR. The court's ultimate decision rested on the employment relationship evidence rather than expressly adopting or rejecting the pleading-variance doctrine.
Legal principles established
#- An employer cannot be held liable in tort to a claimant with whom no employer-employee relationship existed
Court orders
#- 1.The judgment entered against the appellant is set aside
- 2.The 1st respondent is at liberty to pursue enforcement of the judgment against the 2nd respondent
- 3.The appellant shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court
- Jurisdiction invoked
- First appeal against the judgment of the trial magistrate (statutory appeal from 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.
The appeal therefore succeeds to the extent that the judgment entered against the appellant herein is hereby set aside.
The 1st respondent shall be at liberty to pursue the enforcement of the judgment as against the 2nd respondent.
The appellant shall have the costs of the appeal
Issues in the judgment
#The judgment excerpt does not set out the case title, case number or neutral citation, and the parties are identified only as appellant, 1st respondent and 2nd respondent without full names
The parties appear inconsistently - the memorandum of appeal refers to the '1st Appellant' and '2nd Respondent' while the body refers to '1st respondent' and '2nd respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Devki Steel Mills Limited v Wambua & another (Appeal 51 of 2018) [2023] KEELRC 2049 (KLR)", Case Analysis (2023). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2049/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.