[2023] KEELRC 2049 (KLR)

Devki Steel Mills Limited v Wambua & another (Appeal 51 of 2018) [2023] KEELRC 2049 (KLR) (28 July 2023) (Judgment)

Neutral citation: [2023] KEELRC 2049 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Appeal 51 of 2018

NJ Abuodha, J

July 28, 2023

Between

Devki Steel Mills Limited

Appellant

and

Henry Mbuvi Wambua

1st Respondent

Jokali Handling Services Limited

2nd Respondent

Judgment

1. By a memorandum of appeal filed on October 24, 2018, the appellant faulted the judgment of the trial court (Honourable L. Kassam SPM) on grounds among others that;i.That the learned trial magistrate erred in law and fact in failing to judiciously analyze the evidence adduced at trial thereby apportioning 90% liability upon the appellant which finding was unsupported by evidence and thus untenable and unjust to the appellant.ii.That the learned trial Magistrate erred in law and fact in disregarding the evidence on record that clearly showed that the 1st respondent was under the employment and supervision of the 2nd Respondent who was liable as an independent contractor and hence arrived at an erroneous finding on liability.iii.That the learned trial Magistrate erred in law and fact by failing to judiciously analyze the common law and statutory duties owed by the 1st Appellant and 2nd Respondent herein towards the 1st Respondent and hence arrived at finding on liability that is not supported by the law and evidence and hence wholly erroneous.iv.That the learned trial magistrate erred in law and fact by making an award of Kshs.400,000/= under general damages for pain and suffering which award was manifestly excessive, an erroneous estimate altogether and contrary to the general guiding principle on awards under this head.

2. In the submission in support of the appeal, the appellant’s counsel Mr. Muriuki submitted that the respondent in his pleading and evidence as per the witness statement was clear that he was an employee of 2nd respondent and worked solely under it’s instructions.

3. Further the respondent adduced evidence that was at variance with his pleadings. The respondent never pleaded that the appellant owned the machine he used to execute his duties. The respondent further testified that his employer was the 2nd respondent and that it never had supervisors and that the supervisors were from the appellant. This according to Counsel was in contrast with the respondent’s express pleadings that he worked under the directions of the 2nd respondent. Counsel thus submitted that any evidence that was at variance with the pleadings was of probative value and should be disregarded. Counsel relied on the case of IEBC & Another -vs- Stephen Mutinda Mule & three others [2014] eKLR.

4. There having been no employer/employee relationship between the 1st respondent and the appellant there existed no circumstances that would create a duty of care on the part of the appellant towards the respondent.

5. The court has received and considered the judgment of the trial court and noted that the proceedings though very brief captured that the 1st respondent was an employee of the 2nd respondent. At page 86 of the record of appeal the respondent stated as follows;“The Jokali employer are the ones who took me to work for the defendant”.Further at page 87 the respondent stated;“Devki took me to hospital Jokali had employed me”.

6. From the foregoing it was evidently clear that the respondent was an employee of the 2nd respondent Jokali. It was therefore erroneous for the trial court to hold the appellant liable as there existed no employer-employee relationship between the appellant and the 1st respondent.

7. 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.

8. The appellant shall have the costs of the appealIt is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS DAY OF 28TH DAY OF JULY, 2023. ABUODHA J. N.JUDGEIn the presence of:-……………………………………………… for the Appellant……………………………………………… for the Respondent