https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1690

Masai Rolling Mills Ltd v Shiyonga & another (Employment and Labour Relations Appeal E183 of 2025) [2026] KEELRC 1690 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1690 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E183 of 2025 NJ Abuodha, J June 19, 2026 Between Masai Rolling Mills Limited Appellant and Johnstone Isendi Shiyonga 1st Respondent Barford Company Limited 2nd Respondent (Being an appeal from the Judgment and order of the Honourable R.A Oganyo (CM) delivered on the 27th May, 2025 in Kajiado CMCC No. 67 of 2018) Judgment 1.Through the Memorandum of Appeal dated 10th June 2025, the Appellant appeals against the whole of the Judgment and Order of Honourable R.A Oganyo, CM delivered on 27th May,2025. 2.The Appeal was based on 11 grounds among them the Appellant faulted the trial court for finding that the 1st Respondent was employed by the Appellant, that he was injured in the Appellant’s premises on 24th July, 2017, that the Appellant was liable while apportioning liability at 80:20, disregarded the contract of employment between the 1st Respondent and the 2nd Respondent and awarding the 1st Respondent a sum which was inordinately high. 3.The Appellant prayed that the appeal be allowed with costs; the Learned Magistrate’s Judgment and Order issued in Kajiado CMCC No.67 of 2018 be reviewed, varied and/ or set aside and the Honourable court finds that the 1st Respondent was not an employee of the Appellant, not injured at its premises, the quantum award be reduced to a commensurate amount taking note the nature and extent of the injuries and the court to find that the 1st Respondent was an employee of the 2nd Respondent hence to be held liable for the injury. 4.The Appeal was disposed of by written submissions. Appellants’ Submissions 5.The Appellant’s Advocates Moinket & Company Advocates filed written submissions dated 29th September, 2025 and on the issue of whether the 1st Respondent was an employee of the Appellant, counsel relied on Section 2 of the Employment Act on definition of an employee while relying on the case of Samuel Wambugu Ndirangu vs 2NK Sacco Society Limited (2019) eKLR on the ingredients that are necessary to determine the existence of the employer-employee relationship. 6.Counsel submitted that the 1st Respondent was injured on 24th July, 2017 and he produced a bank statement for payment of salaries by the Appellant for May, June and December, 2017. That he did not produce any proof of salary payment in July or August, 2017 when he got injured to associate himself with being an employee of the Appellant at the point of injury. That it was not in dispute that there existed a labour outsourcing agreement between the Appellant and the 2nd Respondent. 7.Counsel relied on section 107 and 108 of the Evidence Act on the issue of prove of the said allegations by the 1st Respondent on he who alleges must proof on a balance of probabilities. That the 1st Respondent stated that he was employed by the Appellant but he did not produce any document showing that he was employed by the Appellant during the period of injury. That there was no job card issued to him by the Appellant, there was no contract or even called any of his former colleagues to corroborate his evidence. That the 1st Respondent did not call any witness or produce any document proving an employment relation between him and the Appellant. 8.Counsel submitted that the court had previously acknowledged Labour Outsourcing Agreements while relying on the case of Mumbua Kisilu & 16 Others v Alllied Wharfage Limited & Another (2020) eKLR. That the Appellant and the 2nd Respondent entered in to a labour outsourcing agreement which was to run between 24th March, 2017 to 23rd March, 2018. That agreement outlined the mandate of the 2nd Respondent including paying of salaries, dealing with court claims, reporting accidents among others. Counsel further relied on Court of Appeal case of Kenya Airways Ltd vs Aviation & Allied Union & Others on the question of outsourcing as being a widely accepted business concept which enable a company to focus on core business, reduce overheads, increase cost and efficiency savings and manage cyclical resource demands. That in line with the Labour outsourcing agreement, the 2nd Respondent took out insurance for their employees and issue employees with contracts and a copy was issued to the 1st Respondent. That in cross examination the 1st Respondent accepted to having received the contract of employment from the 2nd Respondent. That the 1st Respondent was an employee of the 2nd Respondent thus the 2nd Respondent was liable to his injuries. 9.On the issue of whether the 1st Respondent was injured in the Appellant’s premises counsel submitted that the 1st Respondent claimed he was injured on 24th July, 2017 while in his cause of employment. That his injuries were caused by tiny metals on the floor. That although he got injured in the full sight of other people he did not call anyone to confirm he got injured while at Appellant’s premises. 10.Counsel submitted that the 1st Respondent claimed that he worked in shifts and a shift would run from 6.00 a.m to 6.00 p.m. That he got injured at around 4.00pm and had to leave the premises before the shift ended. He confirmed that the attendance sheet ought to have shown that he clocked out at 4.00pm on that day but he did not prove as such. 11.On the issue of whether the 1st Respondent proved liability counsel submitted that the 1st Respondent claimed that the Appellant did not provide him with safe working place in the premises but he did not prove the same or call anyone or his colleagues to corroborate this allegation and that he was mandated to clean his environment as there were no other cleaners. That liability being a tort of negligence the burden was on the 1st Respondent to prove as required under section 107 and 109 of the Evidence Act. In this regard, Counsel relied on the case of P.J Dave Flowers Ltd v David Simiyu Wamalwa (2018) eKLR on employee proving that the employer breached the duty of care by providing unsafe working environment. That the 1st Respondent was injured by tiny metal on the floor while he was tasked to clean the work environment as a manual worker and that the work required no kind of supervision as he was in full control. Counsel relied on the case of Amalgamated Saw Mills v David K Kariuki (2016) eKLR where the court held an employer cannot baby sit an employee in manual tasks and the employee should take precautions on his own security and safety. Counsel further relied on section 13(1) (a) of the Occupational Safety and Health Act where an employee should ensure their own safety at work including wearing protective gears provided by the employer. The 1st Respondent accepted that he had suffered previous injuries and had three matters in court related to work injury on 24th July,2017, 14th October, 2017 and 11th December, 2017 showing he was not careful when working. That the liability of 80: 20 in favour of the 1st Respondent was wrongly arrived at since he had previous matters related to injury and the liability was just against the Appellant irrespective of the 1st Respondent being an employee of the 2nd Respondent. 12.On the issue of whether the 1st Respondent was awarded a sum so inordinate high counsel submitted that the 1st Respondent sustained a deep cut on the left leg and at time of examination by the medical doctor on 19th February, 2018 there was no complaints meaning he had fully recovered. Counsel faulted the trial court for relying on the case of Onsongo v Owino & Another (Civil Appeal E102 of 2023) (2024) KEHC 2483(KLR) (12 March 2024) where the court awarded Kshs 100,000/= for laceration on the lower lip, chest contusion and blunt trauma to the left thigh and the court went on to consider inflation and lapse of time and awarded Kshs 200,000/= despite the suit relied on being decided in 2024. Counsel therefore submitted that the 1st Respondent had only one injury which had healed hence the award of Kshs 200,000/= was inordinately high and manifestly excessive. Counsel instead relied on the case of Rege vs LA (Minor suing through her father and next friend GAA) Civil Appeal E11 of 2021(2022) KEHC 16634(KLR) (20 December, 2022) where the court awarded Kshs 80,000/= while proposing an award of Kshs 75,000/= as commensurate. 1St Respondent’s Submissions 13.The 1st Respondent’s Advocates Ngingi Njuguna & Company Advocates filed its submissions dated 2nd February 2026 and submitted among others on the duty of the first Appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions and relied on the case of Faith Kasyoka v Safepark Limited [2019] eKLR. 14.On the issue of who was the 1st Respondent employer, counsel relied on the case of Devki Mills Limited v John Mbuvi Mackenzie (2016) eKLR to submit that work injury claim is predicated on the employment relationship between the parties. That the Appellant produced an alleged contract of employment which the 1stRespondent denied ever seeing or signing and categorically denied the signature therein to be his. 15.It was submitted that in cross examination RW 1 admitted that the signature in the alleged contract was very different from the signature in the verifying affidavit and written statement. That RW1 further admitted that as per the bank statement produced by the 1st Respondent that the Appellant paid the 1st Respondent his salary. 16.Counsel relied on section 2 of the Employment Act on definition of an employee and the case of UAP life Assurance Company Limited v Commissioner of Domestic Taxes (2019 eKLR that a distinctive feature of an employee is payment of a salary or wages. That on top of paying the 1st Respondent salary directly to him the Appellant had total control of the place of work or work premises. That RW1 admitted that the machines were located in the Appellant’s premises or factory, the machines belonged to the Appellant and that the raw materials and finished product were the exclusive property of the Appellant. 17.It was submitted that while the Appellant alleged that the 1st Respondent was employed by the 2nd Respondent while placing reliance on an employment. According to counsel, the contract was between the Appellant and the 2nd Respondent mainly for provision and maintenance of a work injury insurance policy. That AW1 admitted that 1st Respondent was never involved in the said agreement nor was he a party. That there was no evidence that any of the employees were ever consulted or involved in the said agreement. 18.It was submitted that AW1 was the overall Human Resource Manager and there was nothing precluding him from providing a list that showed that RW1 was an employee of the 2nd Respondent. That the employer being the custodian of employment records was bound to produce the said documents. That AW1 stated and admitted that the Appellant allegedly received an invoice or a list of employees from the 2nd Respondent who directed them to pay the salaries yet AW1 admitted that such a list or invoice existed but he had not produced the same. 19.Counsel relied on the case of Chengo Kitsao v Umoja Rubber Products Limited (2016) eKLR on onus of employer producing employment records. That AW1 failed to explain and demonstrate how in a single factory working on the same machines and items, two different and distinct companies allegedly operated on the same floor. That the Appellant did not produce documents to illustrate the 2nd Respondent operated on their premises. That the trial court did not err when it found that the 1st Respondent was employed by the Appellant. 20.On the issue of liability counsel submitted that the trial court correctly evaluated evidence and entered liability at 80:20 for the 1st Respondent against the Appellant. That it was the 1st Respondent’s unchallenged testimony that on 24th July, 2017 he was in the course of his employment charging the jiko when he suddenly slipped and feel down and in the process was cut by a sharp metal in his left leg causing serious injuries. He blamed the Appellant for their failure to sweep the furnace floor regularly. 21.Counsel submitted that AW1 admitted that the Appellant had a maintenance department and sweepers or cleaners who were responsible for keeping the furnace floor in good order. That the floor was littered with scrap metal making the working environment unconducive and dangerous. That the 1st Respondent was not in the sweeping or cleaning department hence cleaning was not his duty. That the Appellant ought to have provided a safe working space and not expose the 1st Respondent to risks. 22.Counsel further submitted that the 1st Respondent was not supplied with proper protective gear such as heavy-duty industrial boots which amounted to negligence and carelessness on the part of the Appellant. That the 1st Respondent denied the signature in the PPE register while the 2nd Respondent did not call or produce any documents the list of documents produced by the Appellant remained marked for future identification being the PPE issuance form, the claims register and the attendance register. 23.Counsel submitted that the Appellant therefore did not demonstrate by evidence that they provided the 1st Respondent with protective gear and that would have averted the accident and or reduced the severity of the injury. That the Appellant did not demonstrate in what way the trial magistrate erred and there was no basis to disturb the award on liability which was fair and reasonable. 24.On the issue of quantum counsel submitted that the 1st Respondent sustained a deep cut on the left leg which injury was supported by the treatment notes from Kisaju Medical Centre and Medical Report by Dr. Okoth Okere dated 19th February, 2018 and 1st Respondent’s testimony. Counsel relied on among other authorities the case of Michael Okello v. Priscilla Atieno(2021) eKLR where the court awarded Kshs 250,000/= as general damages for pain and suffering. That the authorities relied on by the Appellant were not comparable to the 1st Respondent’s injuries and that the trial magistrate relied on the case of Onsongo v Owino and Another (2024) eKLR where the court awarded Kshs 100,000/= for similar injuries as the 1st Respondent. That the Appellant did not show that the injuries in the case relied on were unrelated or incomparable and therefore no basis to disturb the award on general damages. Determination 25.The court has considered the Record of Appeal, the grounds of Appeal and submissions filed by the parties herein and proceeds to analyse them as follows and notes that the principles which guide this court in an appeal from a trial court are now well settled. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that;“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” 26.The trial court entered as against the Appellant on the basis that the 1st Respondent was its employee who was injured at work place. The court considered the previous injuries on the part of the 1st Respondent portraying him as not a careful employee and apportioned liability at 80:20 and awarded general damages at Kshs 120,000/= together with costs and interests. 27.The Appellant was aggrieved by the above judgment and fronted 11 grounds of Appeal which this court will condense in to three main issues as follows: -a.Whether the trial court erred by finding that the 1st Respondent was an employee of the Appellant and not the 2nd Respondent.b.Whether the trial court erred in finding that the Appellant was liable for injuries sustained by the 1st Respondent at the ratio of 80:20.c.Whether the general damages awarded by the trial court to the 1st Respondent were inordinately too high. Whether the trial court erred by finding that the 1st Respondent was an employee of the Appellant and not the 2nd Respondent. 28.It was the 1st Respondent’s case that he was an employee of the Appellant and the outsourcing agreement was between the Appellant and the 2nd Respondent to insure the Appellant’s employees of any risks. That he was not a party to the said agreement. The 1st Respondent denied the signature in the employment contract produced by the Appellant which fact was admitted by the Appellant’s witness at trial. 29.On the other hand, the Appellant’s case was that the 1st Respondent was employed by the 2nd Respondent after the Appellant had entered into labour outsourcing agreement with the 2nd Respondent. 30.The onus of proving employment under a contract of service lies with the person who alleges that he was so employed. Under section 2 of the Employment Act an employee has been defined as:“A person employed for wages or salary and includes an appredice and indentured learner.” 31.At common law an employee is one who:(a)is required to comply with the employer’s instruction about when, where and how he or she must work.(b)has been trained by the employer to gain experience for purposes of working for the employer.(c)has been integrated into the business operations of the employer so that he is subject to the direction and control of the employer.(d)must render services personally(e)has assistants hired, supervised and paid by the employer(f)has worked continuously for a long time(g)has specific working hours set by the employer(h)is working substantially full-time for an employer and is not free to work for other employers(i)performs work on the employers premises(j)is required to submit regular oral or written report to the employer(k)has his business trips or travel expenses paid for by the employer(l)has tools, material and other requirements met by the employer(m)is easily dismissed at the will of the employer(n)has the right to terminate his contract without incurring any liability. 32.The 1st Respondent’s employment was not in question but as to whether the employment relationship existed between the 1st Respondent and the Appellant or with the 2nd Respondent. 33.The Concept of outsourcing as held in Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR, the Court was satisfied that outsourced services was an accepted business strategy. Murgor, JA. observed that;“Outsourced services is one such widely accepted business concept, which enables a company to focus on core business, reduce overheads, increase cost and efficiency savings, and manage cyclical resource demands. It is not designed to deprive Kenyans of their jobs.” 34.In principle therefore, outsourcing of employees is not illegal or untoward, provided it is carried out in accordance with fair labour practices and the process adopted is not aimed at fostering unfair labour practices. This was the position in Superforam Limited v Olwanda & 7 others (Appeal E007 of 2022) [2022] KEELRC 4028 (KLR) (12 May 2022) (Judgment) where the court held as follows: -Whereas outsourcing labour is now an accepted labour concept, such should not be applied to allow for unfair labour practices. 35.The court went on to state as follows: -The employer must lawfully and procedurally end the employment relationship and issue Certificate of Service before a new employer such as the 8th respondent can take over the subject employees. to enter into an agreement to outsource labour without notice to the affected employees is defined as an unfair labour practice which goes contrary to sections 35, 41 and 45 of the Employment Act, 2007. The subject employee affected by such an agreement must be issued with notice, given a hearing and the same addressed procedurally. 30.Employees are not chattels to be moved from one entity to the next. Due regard to the law is an imperative. 36.In the case of Elizabeth Washeke & 62 others v Airtel Networks (K) Ltd & another [2013] eKLR it was held that;… what an outsourcing or transfer of business entails, this must be clearly spelt out in the contract of employment between the concerned employee and the new employer failure to which the former employer must complete their end of the bargain as between themselves and their employee before conferring a responsibility unsecured with a third party. 37.From the evidence before the trial court upon which that court found as it did, the appellant did not sufficiently demonstrate that it involved the 1st Respondent in the negotiations for the said Labour outsourcing agreement despite the above cited cases where the courts have emphasized that employees be involved in such outsourcing agreements. The court notes that besides the agreement for outsourcing services no other document had been produced before the trial court to show any dealings between the 2nd Respondent and the 1st Respondent who was working in the Appellant’s company. The Court further notes from the bank statements exhibited, it was the Appellant that was paying the 1st Respondent and not the 2nd Respondent. In the circumstances the appellant failed to discharge the burden of demonstrating that the 1st respondent was an employee of the 2nd respondent and itself. The trial court therefore did not err in finding and holding that the 1st respondent was an employee of the appellant. Whether the trial court erred in finding that the Appellant was liable for injuries sustained by the 1st Respondent at the ratio of 80:20. 38.The court having found that indeed the 1st Respondent was an employee of the Appellant and he was injured at the Appellant’s premises where he was charging a jiko and he he slipped, fell and was injured by sharp metals on the floor. The Appellant alleged that the 1st Respondent ought to have ensured the floor was clean but its witness admitted that the 1st Respondent was not in the department of cleaning or sweeping. It was the duty of the Appellant to ensure the floor was clean to minimize risks to the 1st Respondent of being cut by sharp metals. The 1st Respondent blamed the Appellant for failure to issue him with protective gear like heavy duty boots which would avert the injuries he could sustain in his leg. On the other hand, the Appellant’s case was that Respondent failed to take proper care in the course of his duty and failed to wear safety gear provided by the Appellant. 39.Section 107(1) of the Evidence Act, provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 40.This was the position on Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.” 41.The trial court held that the Appellant had a duty of care to provide a safe working environment for the 1st Respondent. From the above, there was no evidence presented by the Appellant to controvert the 1st Respondent’s claim that he was not provided with protective gear. The Appellant never produced an inventory of issuance of protective gears to the 1st Respondent and that he failed to wear them. 42.This Court is fully aware that it is the responsibility of an employer to provide protective gear to an employee as it was held by the Court of Appeal in the case of Makala Mailu Mumende vs. Nyali Golf County Club [1991] KLR 13. The employer is required to take to reasonable steps, to lessen danger or injury to the employee as it is his responsibility to ensure a safe working place for its employees. 43.This court notes that the Appellant ought to have sufficiently shown that the Respondent was negligent in terms of the duty of care to himself hence sustained the injuries. In the case of Segwick Kenya Insurance Brokers –Vs- Price Water House Coopers Kenya, High Court Civil Appeal No. 720 Of 2006 (NAIROBI) the learned Lesiit, J cited the case of Capro Industries Limited Plc –Vs- Dickman &Others (1990) 1 ALL ER, 658, where the House of Lords held thus;“The three criteria for the imposition of a duty of care were foreseeability of damage, proximity of relationship and reasonableness or otherwise of imposing a duty of care. In determining whether there was a relationship of proximity between the parties the court, guided by situations in which the existence, scope and limits of a duty of care had previously been held to exist rather than by a single general principle, would determine whether the particular damage suffered is the kind of damage which the Defendant was under a duty to prevent and whether there were circumstances from which the court could pragmatically conclude that a duty of care existed.” 44.The court finds that the Appellant had a duty of care to ensure a safe working space for the 1st Respondent by ensuring that the floor was clean and providing the protective gears as required. This court just like the trial court takes note of the previous injuries sustained by the 1st Respondent and agrees with the trial court that he ought also to have been careful in his place since the duty of care by the employer is not absolute. The 1st Respondent ought to have ensured that the space he was working in was also clean and if not asked the person responsible to clean it before continuing with his work. In the case of James Finlaly (K) Ltd v Benard Kipsang Koechi [2021] eKLR the court had this to say in support of the above assertion.However, it is my view that the said duty of care is not absolute and it does not absolve the employee from the duty to exercise due care to avoid exposing himself from foreseeable risk. An employee is not a robot that must be programmed to work in particular way. Consequently, an employee will solely or largely to take the blame if he exposes himself to injuries due to his negligence. 45.The court therefore finds this to be a case of contributory negligence as held by the trial court since each party had some duty to mitigate the accident and agrees with the trial court that the Appellant owed a higher duty to the 1st Respondent which was a duty of care to provide a safe working environment. This court therefore, agrees with the apportionment of liability given by the trial court at 80:20 and does not find any reason to disturb it. Whether the general damages awarded by the trial court to the 1st Respondent were inordinately too high. 46.When it comes to the issue of quantum of general damages awarded by the trial court this court will only interfere with the issues of quantum on the circumstances stated in the case of Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 47.The court as a first appellate court will therefore only interfere with quantum herein if it was inordinately high or low. The medical report dated 19th February, 2018 by Dr. Cyprianus Okoth Okere described the nature of injuries as deep cut on the left leg with the injury classified as harm with no complaints at the time of examination. There was a lacerated scar on the lower leg to mean the leg had healed. 48.The trial court awarded the 1st Respondent Kshs 120,000/= as general damages as per above nature of injuries which the Appellant faults as excessive. The trial court relied on the case of Onsongo vs Owino and Another (2024) eKLR where the court awarded Kshs 100,000/= as general damages and due to inflation awarded the above amounts as general damages to the 1st Respondent. 49.The injuries in the above case were laceration on the lower lip, chest contusion and blunt trauma to the left thigh whereas the Appellant alleged that in this case the injuries were deep cut on left leg which was a single injury and the trial court ought to have awarded Kshs 75, 000/= while relying on the case of Rege vs LA (Supra) where the injuries were bruises on the right hand, blunt trauma to the right hand and chest contusion. The court had awarded Kshs 80,000/= as general damages. 50.This court is of the view that assuming we go by the case relied on by the Appellant which was delivered in 2022 and the inflation over the years, the Kshs 120,000/ awarded by the trial court would still not be excessive. This court therefore finds that the Appellant did not demonstrate by case law if the award was excessive or the trial court erred in awarding the above amount as general damages. This court therefore does not see any reason to disturb the said award which in any case is contributory in nature. 51.Accordingly, the appeal is found without merit and is hereby dismissed with costs to the 1st Respondent. 52.It is so ordered. DATED AT NAIROBI THIS 19TH DAY OF JUNE, 2026DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION