Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment)

Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR) (9 May 2025) (Judgment) Neutral citation: [2025] KECA 784 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MALINDI CIVIL APPEAL E046 OF 2022 SG KAIRU, KI LAIBUTA & GW NGENYE-MACHARIA, JJA MAY 9, 2025 BETWEEN THEPOT PATRICK CHARLES ............................................................. APPELLANT AND JOASH SHISIA CHETO ...................................................................... RESPONDENT (Being an appeal from the Judgment and Decree of the Employment and Labour Relations Court of Kenya at Malindi (B. O. M. Manani, J.) delivered on 7th March 2022 in E.L.R.C Cause No. E005 of 2021)

Judgment

1. The respondent, Joash Shisia Cheto, led suit in the Employment and Labour Relations Court at Malindi against the appellant, Theopot Patrick Charles, vide a Memorandum of Claim dated 16th March 2021 seeking to enforce an award of Compensation by the Director of Occupational Safety and Health Services pursuant to the provisions of the Work Injury Benefits Act, Cap. 236 (the WIBA).

2. The respondent’s case was that, in or about February 2019, the appellant employed the respondent as a gardener at the appellant’s residence in Malindi; and that on 7th February 2019, while in the ordinary course of his employment pruning and cutting trees, a branch which he was cutting fell on him and, as a consequence, his left hand was seriously injured.

3. The respondent further averred that, on 5th September 2019, the incident was reported to the Director of Occupational Safety and Health Services (the Director), who lled the necessary statutory forms and, thereafter, assessed compensation payable to the respondent at Kshs. 624,000; that the appellant did not lodge any objection to the Director’s decision on the assessment; that, vide a letter dated 26th January 2021, the respondent demanded payment of the sum awarded together with the accrued interest; and that, despite demand and notice to sue, the appellant refused, failed or neglected to pay. He prayed for judgment against the appellant for Kshs. 624,000; interest thereon with eect from 5th September 2019 until payment in full; and costs of the suit and interest thereon.

4. In response, the appellant led a Written Statement of Defence and Submissions dated 21st May 2021 denying the respondent’s allegations as set out in the Memorandum of Claim. His defence was that, sometime in early 2019, he contracted the services of one Mr. Kazungu who was to undertake the task of pruning trees over an agreed period of time and at an agreed price; that Mr. Kazungu was an independent contractor who the appellant had used over the years; that Mr. Kazungu had his own team of employees who he engaged for the purpose of discharging his contractual undertakings; and that the alleged accident did not occur and that, if there was an accident on or about 7th February 2019, any injuries sustained by the respondent, which were denied, were solely caused and/or substantially contributed to by the respondent’s negligence.

5. The appellant further averred that the particulars of negligence attributable to the respondent were: failure to wear any protective gear while carrying out his duties; failure to be on the proper lookout to prevent the accident; ignoring clear instructions from Mr. Kazungu not to climb the tree he was cutting; and attempting to hang onto a very small plant that could not carry his weight.

6. According to the appellant, the respondent, who was not known to the appellant, suered injuries arising from a fall from the tree that he was pruning; that the allegation that the tree or branch fell on him was untrue. The appellant’s further defence was that the appellant had never employed or contracted the respondent; that the appellant was surprised to receive the respondent’s Memorandum of Claim seeking to enforce the Director’s award as a consequence of an accident that injured someone the appellant never employed; that it was absurd to suggest that the respondent was entitled to any compensation by the appellant; and that the appellant received a demand letter dated 19th September 2019, which was replied to by his advocates vide a letter dated 24th September 2019.

7. The suit proceeded to full hearing where the respondent testied as PW1 and adopted his written statement as his evidence in chief. However, his statement was omitted from the record as supplied to us despite being listed in the index of the record.

8. On cross-examination, the respondent stated that he was employed by the appellant despite not having been issued with any letter of appointment or other written evidence of such employment; that he (the respondent) and Kazungu were both in the appellant’s employment, but that Kazungu occasionally collected payment on their behalf; and that he was not Kazungu’s employee.

9. In his defence, the appellant called two of his employees as witnesses, namely Josephine Nzaro and Cardros Wanje, who testied as RW1 and RW2. The two stated that the respondent had never been employed by the appellant; that Kazungu was the one who was contracted to do the pruning work; and that the respondent was injured while working under Kazungu.

10. Opposing the enforcement of the respondent’s award, the appellant stated that he did not make the notication to the Director or take part in the award process; that he only saw the Director’s award on 23rd March 2021, yet the award was made on 5th September 2019; and that he did not know whether his lawyer appealed the Director’s decision in court.

11. In its judgment dated 7th March 2022, the ELRC (B. O. M. Manani, J) found that, based on the evidence tendered by the parties, the respondent was engaged by the appellant as a casual employee; that it was not clear when the notice or report of the accident involving him was made to the Director and by whom; that the report was acted on and a medical report completed; that, in his statement prepared under oath, the appellant did not specically deny knowledge of the fact that the matter had been submitted to the Director for assessment; and that the appellant should have reacted to the issue immediately after a copy of the Director’s assessment was sent to his lawyers in January 2021.

12. In addition to the foregoing, the ELRC held that the WIBA was silent on how to enforce the Director’s award where an employer elects to ignore the award; that, however, a majority of case law on the issue have determined that the holder of the award can move the court to seek enforcement of the award; that a party who was not made aware of the proceedings before the Director and only learns of them at the adoption stage could only consider ling a Judicial Review motion to quash the award prior to adoption of the award by the court; and that the appellant should have done so in order to ventilate the several procedural issues belatedly raised despite the adoption proceedings having been pending since March 2021. Accordingly, the ELRC adopted the Directors award to the respondent in the sum of Kshs. 624,000; awarded interest on the sum at court rates from the date of judgment until payment in full; and costs of the suit to the respondent.

13. Aggrieved by the learned Judge’s decision, the appellant led the instant appeal vide a Memorandum of Appeal dated 23rd November 2022 on the following grounds: “

1. That the learned Judge erred in facts and law by enforcing and adopting a decision where the Respondent was not a party to.

2. That the learned Judge erred in facts and law in failing to nd that the Claimant was not an employee of the Respondent and that the Claimant was never at any [given] time a party to an agreement for service whether oral, written or otherwise between him and the Respondent.

3. That the learned Judge erred in facts and law in failing to nd that once the Respondent was not notied of the proceedings at and by the Director of Occupational Safety and Health (herein after 'the Director') then it was against the Respondent's legitimate right of fair hearing as provided under the Constitution of Kenya.

4. That the learned Judge erred in facts and law in failing to nd that the decision by the Director was unlawful and illegitimate and as such, he is unable to adopt the said decision for it is inconsistent with the Defendant's legitimate right.

5. That the learned Judge misdirected himself in law and fact by nding that he had no powers to deal with the matter even after making a nding that the Respondent was not party to the proceedings that lead to the Director's

Decision

6. That the learned Judge erred in law and facts in failing to nd that the Director's decision is null and void ab initio.

7. That the learned Judge failed to exercise his discretion properly as a result he reached a perverse nding.

8. That the learned Judge gave a Judgement against the law and weight of evidence.”

14. Learned Counsel for the appellant, M/s. Muli & Ole Kina, led written submissions dated 18th September 2023 while learned Counsel for the respondent, M/s. Matata & Mwabonje, led written submissions dated 31st October 2024, all of which were highlighted orally by the respective counsel when the appeal came for hearing on the Court’s virtual platform on 6th November 2024.

15. This Court’s mandate on 1st appeal was espoused in Ng’ati Farmers’ Co-Operative Society Ltd. v Ledidi & 15 others [2009] KLR 331 as follows: “ An appeal to this Court from a trial by the High Court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briey 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 witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

16. This mandate was reiterated in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 in the following words: “ On a rst appeal from the High Court, the Court of Appeal should 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 allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

17. However, we are conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 that: “It is a strong thing for an appellate court to dier from the nding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a dierent conclusion.”

18. In their submissions, Counsel for the appellant elected to canvass the appeal on two broad issues fashioned thus: “ i. Whether the learned Judge erred in fact and law in failing to appreciate that the Appellant was never informed nor was he part of the proceedings before the Director of Occupational Safety and Health hence against the Appellant's legitimate right of fair hearing thus occasioning a miscarriage of justice. (Ground 1, 3, 4 & 6). ii. Whether the learned judge erred by nding that he had no powers to deal with the matter and as a result illegitimately adopting the Decision by Director of Occupational Safety and Health that was procedurally unfair. (Ground 2, 5,

19. In our considered view, the instant appeal stands or falls on our nding on two main issues, namely: whether the learned Judge erred by failing to nd that the appellant’s was not informed of, or was not party to, the proceedings before the Director, thereby violating his right to a fair hearing; and whether the learned Judge erred by adopting the Director’s award.

20. With regard to the 1st issue, the learned Judge held that: “

31. From the evidence provided, a notice of report of the accident involving the Claimant was made to the Director …. However, it is not clear from the document when this report was lodged and by whom. The suggestion by the Respondent in his submissions that the report was lodged on 5.9.2019 therefore appears unfounded. Apparently, the report was then acted on and a medical report completed as appears on the ipside of exhibit 3 of the Claimant’s documents.

32. From this, the assessment of compensation was made as appears from Claimant’s exhibit

4. It is however contested whether the Respondent was made aware of this development.

33. Whilst the Respondent asserts in evidence that he learned of the assessment in March 2021, the Claimant suggests that the Respondent was made aware of the award by the Director immediately it was made but declined to honour it.

34. I have considered the evidence on this aspect of the dispute. I note that before the Claim was led, the Claimant’s Advocates issued a demand to the Respondent for settlement of the dispute. This demand is dated 19th September 2019 and appears as Claimant’s exhibit

5. This demand elicited a response from the Respondent’s Advocates dated 24th September 2019 in which liability was denied. On 26th January 2021, the Claimant’s Advocates again demanded for payment this time round sending out a copy of the Director’s award. The letter was sent by email to the Respondent’s Advocates (see Claimant’s exhibits 6 and 7). It elicited no response. In March 2021, the Claimant led this claim. On 26th May 2021, the Respondent led a defense to the Claim after having entered appearance in March 2021.

35. I have looked at the Respondent’s defense and witness statement. Apart from the general denial in the defense, I see nowhere in the Respondent’s statement prepared under oath where he specically denies knowledge of the fact that this matter had been forwarded to the Director for assessment. In fact, if this was the case, the Respondent would have immediately reacted to the issue once a copy of the Director’s assessment was sent to his lawyers in January 2021. The rst time the Respondent denies knowledge of the assessment is during his oral testimony on 25th January 2022.

36. In cross examination, the Respondent conrmed that the details in the DOSHI forms correspond with his actual details. That the residence set out in the form was his and that the telephone number in the form was his. It should be noted that at the trial, these forms were produced as exhibits without objection by the Respondent. Their authenticity was not challenged. The need to verify entries in them was not raised by the defence. On the basis of the foregoing and having regard to the demeanor of the witnesses, who appeared before me on the issue, I am inclined to believe the Claimant’s position that the Respondent was made aware of the award earlier than he now suggests.”

21. Faulting the learned Judge for his decision, counsel for the appellant submitted that the provisions of Article 47 of the Constitution (the right to fair administrative action), Article 50(1) of the Constitution (the right to have a dispute decided in a fair and public hearing before a court or other independent and impartial tribunal or body), and section 4 of the Fair Administrative Actions Act (Administrative action to be taken expeditiously, eciently, lawfully etc.) were not adhered to in the entire administrative process against the appellant.

22. The appellant contended that he did not notify the Director of any accident since it never happened and, if it did as alleged by the respondent, the same never happened to a person in his employment and, therefore, he had no obligation whatsoever to notify the Director; that the notice suggests that it was given by the appellant as the respondent's employer, but that there is no evidence suggesting that the same was made by him, or that he signed the form of notication; that, in his Memorandum of Claim, the respondent suggests that the notice was lled by the Director, and that he is aware of who notied the Director; that the hearing neither took place, nor was the appellant notied of the same by the Director or the respondent despite the two having the appellant's contacts as evidenced by the notice in their possession; that the Director went ahead and made an award on the same day on 5th September 2019 by assessing the compensation due at Kshs. 624,000, which award was not brought to the appellant’s attention to enable him respond thereto; and that the respondent’s Advocates subsequently wrote a demand letter to the appellant dated 19th September 2019, which letter did not make any mention of the award despite the respondent having been in possession thereof.