[2022] KEELRC 335 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONSCOURT

AT KISUMU

APPEAL NO. 45 OF 2019

(Originally Kakamega High Court Civil Appeal No. 70 of 2018)

BILALI M. YATOLI...................................PLAINTIFF

VERSUS

MUMIAS SUGAR COMPANY LTD.....DEFENDANT

(Arising from the judgment of the Hon F. Makoyo, SRM delivered on the 10thMay 2018 in Butere SPMCC No. 171 of 2014)

BETWEEN

BILALI M. YATOLI...................................PLAINTIFF

VERSUS

MUMIAS SUGAR COMPANY LTD.....DEFENDANT

JUDGMENT

1. Bilali M. Yatoli (the Appellant) sued Mumias Sugar Company Ltd (the Respondent) before the Magistrates Court, alleging breach of duty of care/negligence.

2. In a judgment delivered on 10 May 2018, the Magistrates Court found that the Appellant had failed to prove his case on a balance of probability and dismissed the suit.

3. The Appellant was aggrieved, and he lodged a Memorandum of Appeal before the High Court in Kakamega contending:

4. The Appellant filed a Record of Appeal on 15 January 2018.

5. When the parties appeared before the High Court on 7 March 2019, the Respondent questioned the Court’s jurisdiction and, in a Ruling delivered on 8 November 2019, the Court transferred the Appeal to this Court.

6. On 11 March 2020, the Court directed the Respondent to file its submissions before 15 June 2020.

7. The Appellant filed his submissions on 15 September 2019, and the Respondent on 15 June 2020.

8. The Appeal was then placed before the Court on 28 June 2021, and it directed that judgment would be on notice.

9. The Court has considered the Record of Appeal and the submissions.

Role of Court on the first appeal

10. The role of a first appellate Court was discussed in Kamau v Mungai (2006) 1 KLR 150, where it was held thatthis being the first appeal, it was the duty of the Court…. To re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.

11. This Court will abide by the interdict on its role as a first appellate Court.

Limitation

12. The Appellant alleged that he was injured in the course of work on 21 May 2010.

13. He sued the Respondent before the Magistrates Court on 24 September 2014.

14. In terms of section 90 of the Employment Act, 2007 and assuming that the cause of action for breach of duty of care/negligence arose within a contractualrelationship, the Appellant should have moved the Court on or before 20 May 2013. He did not.

15. Even assuming that the cause of action was based on tort, under section 4(2) of the Limitation of Actions Act, the Appellant should have moved to the Magistrates Court within 3-years. He did not.

16. The suit by the Appellant was, therefore, statute/time-barred, and the Court should have declined jurisdiction.

17. Assuming that this Court is wrong on that conclusion, the Court will examine the Appeal on the merits.

Burden and Standard of proof

18. In the witness statement filed and produced before the Magistrates Court, the Appellant stated:

I was working at Factory production section for packing. On 21st May 2010, while on duty, as usual, I had an accident at my working area. I was knocked down by Fillim rollers, which caused serious injuries on my right hand, which was fractured.

19. During his oral testimony, the Appellant stated that his work included taking pallets to the operators using a trolley and that on the material day:

As I was pushing the pallets, two rollers fell on me at around 4 pm. I injured my right hand. The rollers arranged at the side of my path detached and injured me. I was taken to Mumias Sugar Medical Centre, and I was referred to St. Mary’s Hospital….

I was given a sick sheet dated 21/05/10 produced as P exhibit 2. The original remained at the medical centre, not the factory. At St Marys, my right hand was plastered, and I was sent home. I have treatment booklet …. I returned to work after 3 days and assigned light duties till the end of the contract.

I blame the company for the accident. They had not arranged the film roller properly, and it was not a safe working environment. They had not given me safety boots. If I had them, I would not have slipped and fell.

20. During cross-examination, the Appellant stated: Someone collects pallets which have already been arranged. I do not know who had left the rollers along my path as another shift was there earlier. No one else was near the rollers. When the roller fell on me, I slipped and fell. The floor was slippery.

21. The Respondents witness, on the other hand, discounted the narration that the Appellant had been injured at work, and he stated:

I have his pay card and disclaimer. These documents were filed in Court. The pay card is prepared to indicate the number of days worked to facilitate payment of dues. A disclaimer is signed by a worker to show he has not been injured at work. According to the Plaintiff’s pay card, the section number is 2040. That shows the section that pays workers. At the time whena worker got injured, I would enter his details in the computer and send him to hospital. We phased out sick sheets in 2003… This is one such sick sheet phased out in 2003. It was not in use in 2010. The sick sheet shows section number 4201, which is different from the one on the pay card. The sick sheet is a forgery. The Plaintiff was not injured on the day he claims. He worked whole day and the next day as well. His claim is not valid.

22. The Appellant did not interrogate the Respondent’s testimony that he was at work the day after the alleged accident.

23. Equally, there was no interrogation of the evidence on the section number inconsistency on the pay cards.

24. The Appellant testified that he was injured at around 4 pm. The sick sheet whose authenticity the Respondent questioned indicated that the injury was recorded at 11. 20 am.

25. The Appellant signed a disclaimer on 31 May 2010.

26. The hospital booklet he relied on had a registration date in June 2010.

27. This Court agrees with the Magistrates Court that considering the inconsistencies in the evidence, the Appellant did not discharge the burden expected of him in a case of breach of duty/negligence.

Conclusion and Order

28. For the above reasons, the Court finds that the causeof action was not only time-barred, but the appeal is without merit, and it is dismissed with costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED ON THIS 30THDAY OF MARCH, 2022

RADIDO STEPHEN, MCIARB

JUDGE

Appearances

For Appellant V.A. Shibanda & Co. Advocates

For Respondent E.K. Owinyi & Co. Advocates

Court Assistant Chrispo Aura