https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1997

Masai Rolling Mills Ltd v Masoni & another (Employment and Labour Relations Appeal E209 of 2025) [2026] KEELRC 1997 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1997 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E209 of 2025 DKN Marete, J July 15, 2026 Between Masai Rolling Mills Limited Appellant and Reuben Wangatia Masoni 1st Respondent Barford Company Limited 2nd Respondent Judgment 1.This matter was originated by way of a Memorandum of Appeal dated 2nd July 2025. It is an appeal from a judgment delivered on 19th June 2025 at Kajiado in Civil Case No. 262 of 2018 wherein the lower court found in favour of the 1st Respondent, awarding him general damages of Kshs. 150,000/= and special damages of Kshs. 2,000/=, totalling Kshs. 152,000/= plus costs and interest. 2.It comes out as follows;i.The Learned Magistrate erred in law and fact in finding that the 1st Respondent was an employee of the Appellant when the evidence on record clearly established that the 1st Respondent was an employee of the 2nd Respondent, a labour outsourcing entity.ii.The Learned Magistrate erred in law and fact in finding that the Appellant was liable for the injuries sustained by the 1st Respondent in the absence of sufficient evidence establishing the existence of an employer-employee relationship between the 1st Respondent and the Appellant.iii.The Learned Magistrate erred in law and fact in ignoring the existence of a labour outsourcing contract between the Appellant and the 2nd Respondent dated 24th March 2017 to 23rd March 2018, which clearly placed all employment obligations, including procurement of PPEs and WIBA insurance, on the 2nd Respondent.iv.The Learned Magistrate erred in law and fact in finding that the Appellant was negligent in the circumstances when the 1st Respondent himself admitted in cross-examination that the accident was caused by a colleague who let go of the metal rod, and not by any act or omission of the Appellant.v.The Learned Magistrate erred in law and fact in holding the Appellant 100% liable for the injuries sustained when liability, if any, lay with the 2nd Respondent as the 1st Respondent’s direct employer.vi.The Learned Magistrate erred in law and fact in awarding general damages of Kshs. 150,000/= which sum is inordinately high, manifestly excessive and not supported by the evidence, given that the 1st Respondent had fully recovered from a single cut wound on the right leg by the time of medical examination on 22nd May 2018.vii.The Learned Magistrate erred in law and fact by failing to give due weight to the admission by the 1st Respondent that he had no documentary evidence to prove he was at work on the day of the alleged accident, and that his bank statement only showed salary payments from January 2018 onwards, well after the date of the alleged injury on 14th August 2017.viii.The Learned Magistrate erred in law and fact by finding that the evidence of PW1 had proved the claim on a balance of probabilities when PW1 contradicted himself materially on how the accident occurred.ix.The Learned Magistrate erred in law and fact by failing to consider that the 1st Respondent called no witnesses to corroborate his account of the accident despite his own admission that other people were present.x.The Learned Magistrate erred in law and fact by relying on the case of Onsongo v Owino & Another [2024] KLR as comparable authority when the injuries and circumstances in that case were substantially different from those in the instant matter.xi.The Learned Magistrate erred in law and fact by awarding costs and interest that are not commensurate with the outcome of the suit. 3.The Appellant prays for orders:a.The appeal be allowed.b.The judgment and decree of the lower court dated 19th June 2025 be set aside.c.The suit against the Appellant be dismissed with costs.d.In the alternative, that the award of general damages be reduced to a sum commensurate with the nature and extent of the injuries sustained.e.Costs of the appeal be awarded to the Appellant. 4.It is the Appellant’s case and submission that the main issue before this court is whether the 1st Respondent was an employee of the Appellant at the material time of the alleged accident on 14th August, 2017 and if so, whether the Appellant was liable for the injuries sustained. 5.The Appellant contends that it entered into a labour outsourcing agreement with the 2nd Respondent, Barford Company Limited, covering the period 24th March, 2017 to 23rd March, 2018. Under the terms of this agreement, the 2nd Respondent was obligated to provide manpower, draw up employment contracts for its workers, supervise the workers, procure PPEs and WIBA insurance cover, pay wages and statutory deductions and deal with any labour disputes or court cases arising from its employees. The 2nd Respondent assumed 100% liability for the workers it supplied. 6.The Appellant relies on the case of Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] eKLR in which the court laid out the elements necessary to establish an employer-employee relationship: selection and engagement of the employee, proof of payment of wages, power of dismissal, and the power to control the employee’s conduct. The Appellant submits that none of these elements point to it as the employer of the 1st Respondent. 7.The Appellant further relies on the decision of this court in Mumbua Kisilu & 16 Others v Allied Wharfage Limited & Another [2020] eKLR where the court held that workers supplied under an outsourcing agreement are employed by the outsourcing company, which assumes full liability including for labour disputes. The Appellant submits the same principle applies here. 8.On the issue of the 1st Respondent’s bank statement, the Appellant submits that the statement covers the period January 2018 to May 2018 and shows payments from “Masai Rolling Mills”. However, the payments do not establish employment at the time of the alleged accident on 14th August 2017 for which no salary evidence was produced. Additionally, DW1 testified that the Appellant paid salaries through employee bank accounts and that the contractual arrangement with Barford required the 2nd Respondent to submit employee bank account details. The salary payments therefore do not conclusively establish that the Appellant was the 1st Respondent’s employer. 9.On liability for the accident, the Appellant submits that the 1st Respondent materially contradicted himself on the cause of the accident. In his witness statement he stated the driver drove off without his knowledge. In cross-examination he admitted the driver did not cause his injuries and attributed the accident to a colleague who let go of the metal rod. No colleague or eyewitness was called. The 1st Respondent failed to prove negligence on the part of the Appellant. 10.On quantum, the Appellant submits that an award of Kshs. 150,000.00 is manifestly excessive for a single deep cut on the right leg which had fully healed by 22nd May 2018 with no present complaints. The Appellant cites Rege v LA (Minor) [2022] KEHC 16634 (KLR) where Kshs. 80,000.00 was awarded for bruises to the right hand, blunt trauma and chest contusion and submits that an award of Kshs. 75,000.00 would be commensurate. 11.The 1st Respondent’s case and submission is in support of the judgment of the lower court, which he urges this court to uphold in its entirety. He submits that he was an employee of the Appellant and was paid his salary through his KCB bank account by the Appellant. He relies on his bank statement and his own testimony and on the fact that the Appellant’s witness confirmed during cross-examination that the 1st Respondent was let into the Appellant’s premises through an attendance book maintained by the Appellant. 12.The 1st Respondent submits that the existence of a contract between the Appellant and the 2nd Respondent does not absolve the Appellant of liability, as the Appellant was the entity that actually paid his salary and exercised control over the loading operations within its premises. He argues that it was illogical for the Appellant to allege that he was not its employee while simultaneously paying his salary. 13.On the issue of employment, the 1st Respondent relies on the authority of Miller v Minister of Pensions [1947] ALL ER 372 for the proposition that the standard of proof on a balance of probabilities requires no more than that it is more probable than not. 14.On the question of safe working conditions, the 1st Respondent relies on Section 6(1) of the Occupational Safety Health Act which imposes a duty on every occupier to ensure the safety, health and welfare of all persons working in the workplace and again on the Factories and Other Places of Work Act, Cap. 514, Laws of Kenya which requires provision of suitable protective clothing and appliances. He submits that the Appellant failed to provide PPEs and is therefore strictly liable for breach of statutory duty, citing African Highlands & Produce Co. Ltd v Collins Moseti Butweka HC Civil Appeal No. 38 of 2002 (Kericho) unreported. 15.On quantum, the 1st Respondent submits that the award of Kshs. 150,000/= is commensurate with the injuries sustained and is consistent with the comparable award in Onsongo v Owino & Another [2024] KLR, as applied by the lower court. 16.This is a first appeal. The duty of this Court is to re-evaluate the evidence on record and arrive at its own independent conclusions, bearing in mind that it has not had the advantage of seeing and hearing the witnesses. As is posited and held inPeters v Sunday Post [1958] EA 424 and Selle v Associated Motor Boat Co. Ltd [1968] EA, 123. 17.After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal and the submissions of the parties the issues for determination therefore become;1.Whether the 1st Respondent was an employee of the Appellant.2.Whether the 1st Respondent was injured in the course of his employment and whether the Appellant is liable for those injuries.3.Whether the quantum of damages awarded is appropriate. 18.On the 1st issue for determination, as to whether the 1st Respondent was an employee of the Appellant, the existence of an employment relationship is a threshold question in this matter. The Appellant contends that the 1st Respondent was an employee of the 2nd Respondent, Barford Company Limited, under a labour outsourcing arrangement. The 1st Respondent disputes this and maintains he was the Appellant’s direct employee. 19.The test for establishing an employer-employee relationship was set out in Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] eKLR to include: selection and engagement of the employee; payment of wages; the power of dismissal and the power to control the employee’s conduct. 20.The record discloses a labour outsourcing contract (Exhibit 3) between the Appellant and the 2nd Respondent covering 24th March, 2017 to 23rd March, 2018. Under Clause 3 of that contract, the 2nd Respondent was obligated to provide manpower, draw up employment contracts, supervise workers, procure PPEs, obtain WIBA insurance cover, pay wages, handle all statutory deductions, and deal with labour disputes. The 2nd Respondent assumed 100% liability for the workers it supplied. 21.Exhibit 2 is a contract of employment issued to the 1st Respondent by Barford Company Limited, not by the Appellant. The 1st Respondent in cross-examination confirmed that his ID number (26742400) appears in that contract and that the contract showed he commenced employment on 1st April, 2017 though he denied the contract was genuine. This denial is not credible given that he confirmed his own national ID number appeared on the document. 22.The 1st Respondent produced a bank statement showing salary credits described as “Salary Payment AT-DPC Masai Rolling Mills” from January 2018 to May 2018. He admitted in cross-examination that he had no evidence of salary payment from Masai Rolling Mills in August 2017 or at any other time in 2017 which is the period material to the accident. The bank statement therefore does not establish that the Appellant was his employer at the time of the alleged injury. 23.The evidence of DW1, one, Moses Isakui, the Human Resources Manager of the Appellant is instructive. He confirmed that the Appellant had an outsourcing arrangement with the 2nd Respondent, that the 2nd Respondent was responsible for procuring WIBA cover and PPEs for the workers it supplied and that the salary payments were routed through the Appellant’s payroll system as a convenience, as clause 3.2 of the outsourcing contract required the 2nd Respondent to submit employee bank account details to the Appellant. He further confirmed that the plaintiff was let into the Appellant’s premises through an attendance book kept by the Appellant. 24.The fact that salary was paid through the Appellant’s bank system is not, in itself, determinative of the employer-employee relationship where an outsourcing arrangement clearly places that obligation on the outsourced contractor. The decision in Mumbua Kisilu & 16 Others v Allied Wharfage Limited & Another [2020] eKLRspeaks directly to this point: where workers are supplied under an outsourcing agreement and the outsourcing company assumed all employment obligations and 100% liability, those workers are employees of the outsourcing company, not the client. 25.However, the issue is not entirely straightforward. The 1st Respondent was physically working within the Appellant’s premises, was admitted via the Appellant’s attendance records, and his salary payments, though channelled as a contractual mechanism, were credited as payments from the Appellant. The Appellant’s own HR Manager could not deny that the 1st Respondent was present at the Appellant’s factory on the day of the accident.Their evidence was merely that the driver driving off could not have caused the accident. 26.On a balance of probabilities, this court finds that the 1st Respondent was deployed by the 2nd Respondent to work at the Appellant’s factory under the outsourcing arrangement and that primary employment obligations including the duty to provide PPEs and WIBA insurance vested in the 2nd Respondent. The Appellant is not the 1st Respondent’s employer in the strict sense of the word and law. However, the Appellant, as the occupier of the premises within which the 1st Respondent worked, owed the 1st Respondent a duty of care with respect to safety of the premises and the working environment. 27.On the 2nd issue for determination, that is whether the 1st Respondent was injured in the course of his employment and whether the Appellant is liable for those injuries, the 1st Respondent’s evidence on the cause of the accident is problematic. In his witness statement he stated that “the driver drove off without my knowledge and as a result I slid and injured my right leg.” In cross-examination, however, he resiled from this account and stated: “I fell down because I was on the lorry and my colleague who was new and he left the grip of the metal” and “the metal rod left by my colleague made me slide back”. He then confirmed: “the driver never made me get injured”. 28.This is a material contradiction going to the very cause of the accident. The 1st Respondent failed to call any witness – neither the colleague who allegedly caused the accident nor any of the other workers who were present and who he admitted witnessed the accident. This failure to call any corroborating witness significantly weakens his case. 29.Where an accident is caused by the act of a co-worker, the employer’s liability must be established through negligence, whether in the hiring of an incompetent colleague, failure to train, failure to supervise, or failure to maintain a safe system of work. The 1st Respondent made no attempt to establish any of these grounds. He made a bare assertion of liability against the Appellant on the basis that he was not issued with PPEs. 30.The duty to provide PPEs was, under the outsourcing contract, vested in the 2nd Respondent. This court in P. J. Dave Flowers Ltd v David Simiyu Wamalwa [2018] eKLR held that the particulars of hazards and elements of breach of duty of care must be clearly pleaded and proved. There is a lack of nexus established between the Appellant’s acts or omissions and the injuries sustained, given that the 1st Respondent himself attributed the accident to his colleague, not to any unsafe condition of the Appellant’s premises. 31.Section 13(1)(a) of the Occupational Safety and Health Act, No. 15 of 2007 places an obligation on every employee to ensure his or her own safety at work and to use any protective equipment or clothing provided by the employer for the purpose of preventing risk to safety and health. The 1st Respondent did not establish that PPEs were available and that he was refused access to them; his evidence was a generic complaint. 32.This court finds that the 1st Respondent has failed to prove negligence against the Appellant on a balance of probabilities. His claim against the Appellant ought not to have succeeded on the evidence before the lower court. The lower court erred in finding liability at 100% against the Appellant. 33.Given the foregoing findings that the 1st Respondent was an employee of the 2nd Respondent and that the primary duty to provide PPEs and WIBA insurance cover vested in the 2nd Respondent, any liability for the injuries sustained by the 1st Respondent would lie, if at all, against the 2nd Respondent as his employer. That question is, however, not before this court. The 1st Respondent neither cross-appealed nor sought any relief against the 2nd Respondent in this appeal and the lower court made no award against the 2nd Respondent that is the subject of challenge. An appellate court has no jurisdiction to grant a relief that no party has sought; parties are bound by their pleadings, as the Court of Appeal affirmed in the authority of Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, an authority both parties placed before this Court. The 1st Respondent’s remedies against the 2nd Respondent, if any, fall to be pursued in appropriate proceedings and not in this appeal. 34.On the 3rd issue for determination, that is whether the quantum of damages awarded is appropriate, and whether this court be wrong on the question of liability, this court addresses the quantum of the award for completeness. The 1st Respondent sustained a single deep cut on the right leg. Dr. Okere’s medicolegal report dated 22nd May 2018 records that at the time of examination there were no present complaints and the injury had healed, leaving a lacerated scar. The injury was classified as “harm”. 35.The trial court relied on the authority ofOnsongo v Owino & Another [2024] KLR where Kshs. 100,000.00 was awarded for laceration on the lower lip, chest contusion and blunt trauma to the left thigh, being multiple injuries. The lower court adjusted upwards to Kshs. 150,000.00 to account for inflation and lapse of time. This court respectfully disagrees with that approach. The injuries in Onsongo were multiple; the injury in the instant case is a single healed cut with no residual disability. The appropriate comparator is a case involving a similar single, healed soft tissue injury. 36.In Rege v LA (Minor) [2022] KEHC 16634 (KLR), Kshs. 80,000.00 was awarded for bruises to the right hand, blunt trauma and chest contusion. Having regard to the nature of the single injury herein, the full recovery established by the medical evidence, and appropriate adjustment for inflation, this court would have assessed general damages at Kshs. 80,000.00 37.The special damages of Kshs. 2,000.00 were pleaded and proved and there is no objection to that award. 38.Having carefully considered the record of appeal, the submissions of counsel and the applicable law, this court finds as follows: 39.On the first issue, the 1st Respondent was deployed to the Appellant’s factory by the 2nd Respondent under a labour outsourcing arrangement. The 2nd Respondent was the 1st Respondent’s employer at the material time. 40.On the second issue, the 1st Respondent has failed to prove negligence against the Appellant on a balance of probabilities. His materially contradictory account of the accident, his failure to call any witness and his own concession that the accident was caused by a colleague rather than the Appellant’s negligence are fatal to his claim against the Appellant. 41.On the third issue, even if liability had been established, the award of Kshs. 150,000/= for a single healed laceration wound would have been inordinately high and would have required reduction and review. 42.In the premises, the appeal succeeds. For the reasons set out above, no judgment can issue against the 2nd Respondent, against whom no cross-appeal was lodged and no relief was sought in this appeal. 43.I am therefore inclined to allow the appeal and order as follows;i.The judgment and decree of the trial court dated 19th June, 2025 be and is hereby set aside.ii.Each party bears their costs of this appeal. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026.D. K. NJAGI MARETEJUDGEAppearances:Miss Wanjiku instructed by Moinket & Company Advocates for the Appellant.Mr. Kisis instructed by Kisia & Company Advocates for the Respondent.