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ELRCPartially AllowedNaivasha CMCC No. 222 of 2014 (Appeal)

Nganga v Sinopec International Petroleum Services Corporations Limited (Employment and Labour Relations Appeal 57 of 2017) [2024] KEELRC 1627 (KLR)

Employment and Labour Relations Court (first appeal from magistrates' court)
26 June 2024
5,405 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled employers can't blame injured workers for accidents without evidence, and doubled this worker's compensation to Kshs 1.8 million.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court from the judgment and decree of Hon. D. Nyambu (CM) delivered on 6th December 2017 in Naivasha CMCC No. 222 of 2014. The appellant, employed as a carpenter and deployed as a cement mixer at Olkaria IV, claimed that exposure to cement dust and the manual lifting of heavy cement bags without a crane or protective gear caused chest infection and back problems diagnosed from 1st August 2013. He sued in negligence and breach of statutory duty, seeking special damages of Kshs 4,032,680, general damages, loss of amenities and diminished earning capacity. The trial court found the respondent liable but apportioned 20% liability to the appellant, awarding him Kshs 804,000 after contribution. The appellant appealed on six grounds, principally the apportionment of liability, the inadequacy of general damages, and the dismissal of his diminished earning capacity claim. The respondent, through written submissions, maintained that cross-examination effectively challenged the appellant's evidence, that the medical report produced by consent was admissible, and that the appellant delayed in reporting and mitigating his injuries. The court, exercising its first-appeal duty to re-evaluate the evidence afresh, held that the job card proved employment, that no evidence supported the 20% contribution, and that the trial court failed to consider the pleaded and proved diminished earning capacity and the case law on quantum. The appeal was allowed: the trial judgment was substituted with Kshs 1,000,000 for pain and suffering plus Kshs 839,100 for future earnings on a five-year multiplier (total Kshs 1,839,100), with costs of the appeal and the lower court plus interest to the appellant.

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 erred in apportioning 20% liability to the appellant when the respondent tendered no evidence to challenge the appellant's testimony
  2. 2.Whether the trial court erred in failing to find the respondent wholly liable for failing to provide protective gear and safe working equipment
  3. 3.Whether the general damages awarded were commensurate with the injuries sustained
  4. 4.Whether the trial court erred in dismissing the claim for diminished earning capacity / loss of future earnings which was pleaded and proved
  5. 5.Whether the trial court disregarded the appellant's submissions and initial treatment notes on retirement on medical grounds

Key legal issues

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01

Apportionment of 20% liability to the appellant

Holding

The 20% contribution was set aside as it was not supported by any evidence of the appellant's contributory conduct.

Reasoning

The respondent tendered no witness and did not demonstrate what the appellant did or failed to do to contribute to his injury. The delay in reporting/seeking treatment argued by the respondent did not establish, on the evidence, that the appellant was incautious. Apportionment without evidence has no basis and the appellate court interfered.

p. 10
02

Proof of employment relationship

Holding

Employment was proved by the job card produced in evidence, resolving the respondent's denial.

Reasoning

Although the respondent denied an employer-employee relationship, the appellant produced his job card as an exhibit. The court held this settled the issue of employment, which underpinned liability in negligence and breach of statutory duty.

p. 9
03

Diminished earning capacity / loss of future earnings

Holding

The trial court erred in failing to award damages for diminished earning capacity which was pleaded and proved through the medical reports.

Reasoning

The medical reports of Dr. Omuyoma (1/12/2014) and Dr. Bodo (29/6/2016) showed continuing lumbar problems and reduced leg movement three years after the injury. The court awarded loss of future earnings on a 5-year multiplier at the pleaded net salary.

p. 9
04

Adequacy of general damages quantum

Holding

The trial court failed to consider submissions and case law on comparable awards; the court enhanced damages for pain and suffering to Kshs 1,000,000.

Reasoning

Given the injuries suffered (PID, chemical pneumonia, loss of lumbar lordosis, reduced leg raising), the court found the trial court had failed to consider the cited case law on quantum and substituted its own award of Kshs 1,000,000 for pain and suffering.

p. 10

Legal principles established

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  • On a first appeal, the court is obliged to re-evaluate the evidence afresh and make its own determination
  • A job card produced in evidence is sufficient proof of an employer-employee relationship where employment is disputed
  • Contributory negligence cannot be imposed without evidence of what the claimant did or failed to do

Court orders

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  1. 1.Appeal allowed; judgment of the lower court substituted
  2. 2.Damages for pain and suffering at Kshs 1,000,000
  3. 3.Damages for future earnings on a multiplier of 5 years: 13,988 x 12 x 5 = Kshs 839,100; total award Kshs 1,839,100
  4. 4.Respondent to pay costs of the appeal and of the lower court plus interest at court rates from the date of the judgment

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, Naivasha
Naivasha CMCC No. 222 of 2014
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court judgment and decree (the court noting 'This being a 1st appeal to this court, this court is obligated to re-evaluate the evidence afresh')

Relief refused

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Finding the respondent 100% liable with no apportionment dispute on quantum of special damages as pleaded (Kshs 4,032,680)

The court substituted its own award based on pain and suffering and future earnings multiplier; the full claimed special damages were not granted as pleaded

p. 10

Costs

The Respondent will pay costs of this case plus costs of the lower court plus interest at court rates with effect from the date of this judgment.

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.

1. Damages for pain and sufiering considering the injuries sufiered at Kshs 1,000,000/= 2. Damages for future earnings on a multiplier of 5 years = 13,988 x 12 x 5 = 839,100 Total = 1,839,100/=
p. 10Final orders substituting the trial court's judgment
In the circumstances it is my finding that the appeal has merit. I therefore allow it and find for the appellant and substitute the judgment for him in the following terms
p. 10Disposition - appeal allowed
This being a 1st appeal to this court, this court is obligated to re-evaluate the evidence afresh and make a determination on the same.
p. 8Duty of first appellate court
never indicated what he did or failed to do to make him a contributory of the injury. In the circumstances awarding him 20% contribution was without any basis.
p. 10Contributory negligence without evidence
The Respondent will pay costs of this case plus costs of the lower court plus interest at court rates with efiect from the date of this judgment.
p. 10Costs order

Issues in the judgment

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minor

No appeal/case number is given for the appeal itself in the judgment; the only case number on record is the lower court file, Naivasha CMCC No. 222 of 2014

minor

The judgment refers to the appellant inconsistently as 'Claimant' and 'plaintiff/appellant' in the same narrative

minor

Paragraph 48 states the trial court awarded '1 million. In damages and special damages of 5,000/=' while paragraph 5 records an award of Kshs 804,000 after 20% contribution

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, "Nganga v Sinopec International Petroleum Services Corporations Limited (Employment and Labour Relations Appeal 57 of 2017) [2024] KEELRC 1627 (KLR)", Case Analysis (2024). Naivasha CMCC No. 222 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1627/eng@2024-06-26

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