https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1541

China Construction Company Limited v Ochwangi (Appeal E208 of 2025) [2026] KEELRC 1541 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1541 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E208 of 2025 NJ Abuodha, J June 5, 2026 Between China Construction Company Limited Appellant and Wilfred Maiko Ochwangi Respondent (Being an appeal from the Judgment of the Chief Magistrate Court at Nairobi (Honourable Lucy Ambasi) delivered on 3rd June, 2025 in CMCC 1852 of 2019) Judgment 1.Through the Memorandum of Appeal dated 18th June, 2025 the Appellant appeals against whole of the Judgment of Honourable Honourable Lucy Ambasi) delivered on 3rd June, 2025 in CMCC 1852 of 2019 on grounds inter alia:a.That the Honorable Learned Magistrate erred in law and in fact in apportioning liability 100% against the Appellant.b.That the Honorable Learned Magistrate erred in law and in fact in the assessment of generalc.That the Honorable Leaned Magistrate erred in law and in fact in disregarding and/ or failing to consider the Respondent’s second medical report and only relied on medical report produced by the Respondent in determination of the matter.d.That the Learned Magistrate misdirected herself by failing to consider and/or analyze the evidence adduced and make a finding on whether the occupational disease allegedly contracted by the Respondent was caused by the negligence of the Appellant.e.That the Learned Magistrate erred in law and in fact in failing to adhere to precedents on comparable injuries. 2.The Appellant consequently prayed that the appeal be allowed and the judgment by learned Magistrate delivered on 3rd June, 2025 in CMCC 1852, be set aside and that this court reviews the findings of the trial court on liability and quantum and reduce the quantum thereof for the reason that the award by the trial court was inordinately high. The appellant further prayed for the costs of the appeal. 3.The Appeal was disposed of by written submission Appellant’s Submissions 4.The Appellant’s Advocate, Mr. Migiro submitted that it was undisputed that the respondent was employed by the appellant however the respondent did not sufficiently prove that the appellant breached its statutory obligations by not providing the respondent with protective gear while at work and that the respondent contracted occupational disease attributed to his work at the appellant’s premises. 5.Counsel submitted that the medical documents produced by the respondent and relied on by the trial court were issued on diverse dates some prior to the employment of the respondent by the appellant. Further that the medical documents submitted did not link the respondent’s ailment with his place and conditions of work. That is to say the respondent did not contract occupational disease while working for the appellant. According to counsel, the second medical report by doctor Wambugu stated that examination of the x-ray reports revealed that the respondent suffered from pulmonary tuberculosis and not bronchitis further that bronchitis could be due to prolonged exposure to dust hence it was difficult to ascertain the cause of bronchitis. It was therefore submitted that the respondent had a duty to demonstrate that he suffered bronchitis in the course of his employment. 6.In support of the above submissions, counsel relied on the case of Rushbah Industries Limited v. Eijah Seka Owino [2021]eKLR where the court stated that in an occupational disease claim, it was not enough to prove employment and occurrence of a disease. The claimant had to go further to create a nexus between the disease and specific substance at the workplace. In order to discharge the burden, expert evidence beyond the medico-legal report is necessary. Similarly, counsel relied on the case off Ogada v. Multimedia University of Kenya [2023] KEELRC 2973 (KLR). Counsel therefore submitted that the respondent failed to discharge this burden hence the trial court erred in holding that the respondent contracted his ailment as a consequence of his work environment. 7.On the issue of quantum, counsel submitted that the trial court failed to consider relevant authorities in arriving at the same including the cases of Kenya Paper Mills Ltd v. Anthony Kimani Mbugua [2019]eKLR, Insight Management Consultants Ltd v. Dickson Gwaro Manduku [2022] KEHC 640 (KLR) and Kassam & Bros. Company Limited v. Maina [2023] KEHC 1204. 8.Counsel therefore urged the court to reevaluate the findings of the trial court on liability and the quantum of general damages payable Respondent’s Submissions 9.Counsel for the respondent Mr. Seth Ojienda submitted among others that the trial magistrate was right in holding as she did that the appellant was liable for the respondent’s ailment which the latter contracted in the course of employment due to poor working conditions. According to counsel, the appellant was a manual worker and was assigned to work using detonators with ammonium nitrate to blast heavy stones which emitted a lot of dust. The respondent as a result contracted bronchitis since he was never provided with any protective working gear. This was submitted, was in contravention of section 10(1) of the Occupational Safety and Health Act which made it mandatory for the employer to provide such protective gear. Counsel further relied on the case of Boniface Muthama Kavita v. Canton Manufacturers Ltd [2015] eKLR, Sokoro Saw Mills Ltd v. Bernard Muthimbi Njenga Civil Appeal No. 38 of 1995 and the case of Makala Mailu Mumende v. Nyali Golf Country Club Appeal No. 16 of 1989. 10.Mr. Ojienda further submitted that the appellant was aware of the risk associated with the respondent’s nature of work and that the appellant had not sufficiently demonstrated to the trial court why liability should not be 100% attributed to it for negligently carrying out its statutory duty. Further, the appellant did not adduce any evidence before the trial court that the respondent had been issued with any protective gear suitable for his role and in this regard, Counsel relied on the case of Super Foam Ltd v. Dominic Njuguna Gaitho [2016] eKLR. 11.On the quantum of damages, counsel submitted that the learned magistrate was right in the assessment of the general damages payable and that prior to the enactment of the WIBA in 2007, the obligation of an employer to compensate an employee who was injured in the course of employment was based on Workmen’s Compensation Act under section 35(1) thereof. Counsel further submitted that the respondent’s service was terminated on the basis that he could no longer work in a dusty nor carry out heavy tasks due to occupational illness and that the trial magistrate was right in in awarding him the assessed damages. In that regard counsel relied on the case of Hiribo Mohammed Fukisha v. Redland Roses Ltd [2006] eKLR. It was therefore submitted that the award was not excessive. Counsel contended that Counsel for the appellant only submitted on the medical report by Dr. Wambugu yet there were two medical reports, one by Dr. Wambugu and another by Dr. Okere and that the trial magistrate was guided by both medical reports and the testimonies by the appellant and the respondent before reaching the finding that the respondent contracted bronchitis because of his conditions of work. Determination 12.The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 13.The Judgment of the trial court was that the respondent’s claim was allowed and the trial court awarded him the sum of Kshs. 3, 469,536/- as general damages together with costs of the suit. 14.The appellant feeling aggrieved by the finding of the trial court, brought the present appeal against the entire judgment of the trial court and urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and dismissing the suit in the court aquo. 15.As observed above concerning the role of this court as a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law. 16.The appellant has urged this court to overturn the finding by the trial court that the termination of the respondent’s service was as a result of his inability to continue working in a dusty environment and that further that he was henceforth unable to carry out heavy tasks as a casual employee for which he was employed. 17.The trial court had before it two medical reports. One by Dr. Okere and another by Dr. Wambugu. Whereas Dr. Okere was specific that the respondent contracted bronchitis which was attributable to the dusty environment, Dr. Wambugu was of the opinion that examination of the x-ray reports revealed that the respondent suffered from pulmonary tuberculosis and not bronchitis further that bronchitis could be due to prolonged exposure to dust hence it was difficult to ascertain the cause of bronchitis. That is to say, both doctors were in concurrence that bronchitis could be due to prolonged exposure dusty environment except that according to doctor Wambugu, it was difficult to ascertain the cause of bronchitis that the respondent was ailing from. 18.The Court takes the view that the finding by doctor Wambugu that the cause of bronchitis the respondent was suffering from was difficult to ascertain, contradictory. I say so because, whereas on one hand the doctor conceded that bronchitis could be as a result of long exposure to dust, on the other hand, he contradicts himself by stating that the cause of bronchitis in the respondent was difficult to ascertain. 19.It was not disputed that the respondent was a casual worker employed by the appellant in a quarry where he was using detonators containing ammonium nitrate to blast heavy stones which emitted a lot of dust. It was also not disputed that the appellant provided no evidence before the trial court that it provided the respondent with protective equipment as was its statutory duty. The was therefore reasonably close nexus between the respondent contracting bronchitis and his conditions of work where he was not provided with protective gear. The trial court was therefore right in finding that the respondent’s ailment had something to do with his working conditions and that the appellant was entirely responsible since it provided no evidence before the trial court that despite providing the respondent with protective gear for his work he either failed to use or properly use the same hence contracted bronchitis. The assignment of 100% liability was therefore right. This ground of appeal therefore fails. 20.On the issue of quantum it is a settle principle that a Court of Appeal will not disturb an award of damages merely because it would have awarded a different amount. An appellate court will only interfere with a trial court’s assessment if the appellant demonstrated that the lower court proceeded on a wrong principle of law, misapprehended the evidence, or made an award that is so inordinately high or low that it represented a wholly erroneous estimate. Counsel for the appellant while challenging the assessment of quantum of damages by the trial court, did not sufficiently demonstrate that such assessment was so high that it represented a wholly erroneous estimate of damages commensurate to the injury to health sustained by the respondent. All the appellant’s counsel did was to throw in several authorities contending that the trial court failed to consider them as relevant authorities in arriving at the correct estimate of quantum of damages awardable for similar injuries. Counsel failed to unbundle the authorities presented and distinguish the same to the satisfaction of the court in order to demonstrate that the trial court made a wholly erroneous estimate. To my mind, Counsel seemed to have been more concerned by the fact the appellant was not responsible for the respondent’s illness due to work conditions at the appellant’s premises. The Court has found otherwise in this regard. To this extent the Court finds and holds that the trial court did not make an error in assessing the quantum of damages to be awarded to the respondent. This ground of appeal therefore fails. 21.In conclusion, the Appeal is therefore found without merit and is hereby dismissed with costs 22.It is so ordered. DATED AT NAIROBI THIS 5TH DAY OF JUNE 2026DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION