By MUSYOKI KIMANTHI

Q. I had been working at a factory for the past 15 years until last year when I got an injury at the work place and was retired by my employer. I blame the employer for my injury and I have wanted to sue but unfortunately I have no document to prove that I was employed nor any medical record of the injury since all this was retained by the employer. Is that the end of my case or do I stand a chance in a Court of law?

A. I want to believe that most labourers will almost identify with the questioner’s dilemma. Some cunning employers will keep all documents relating to an employee in the false hope that in the event of an injury, they may get away with it by pretending that the alleged employee is a stranger, or that they have no information or record relating to the alleged injury.

This conduct make most industrial accident claims go uncompensated and with that also goes hope for a better future.

Our employment law and all other enabling legal provision tend to favour the employee in moments like this. For instance, Section 74 (1) of the Employment Act provides that an employer shall keep a written record of all employees employed by him together with other particulars such as employment details, statement of statutory deductions, particulars of sick leave, among others. One may, therefore, see that in the case of proving that an employment relationship existed, the law shifts the burden of proof from the employee to the employer.

READ MORE

 Parliamentary Games: It's raining gold, silver in regional championships

 PS Omollo : We regret police action on femicide protesters

 Ruto dismisses critics as liars, spells out big projects

 Ruto ignores concerns over abductions

A patient recuperates in hospital after sustaining injuries at his place of work. Such an employee can sue his employer for compensation. [PHOTO: FILE/STANDARD}

The Civil Procedure Act also provides for scenarios where the documents that a litigant intends to rely on are in possession of the other party. The law provides that a litigant may request any other party to the suit to make discovery in oath of the documents which are or have been in his possession or power relating to any matter in question in the suit.

Extracting information

If the person so requested refuses or neglects within 14 days to make discovery, the person seeking the documents may make an application to the court seeking an order to direct such discovery. The court may decline the application at that stage of the suit or may make the order generally or limited to certain classes of documents. Another way of extracting information in custody of the other party to a suit is through interrogatories. These are questions put to a person in writing to a party in a suit or witness, which are answered on oath. In the case of medical reports, the doctor who attended the claimant may be requested to appear in court to answer on oath questions regarding the contents of the medical reports.

Serious consequences

The consequences of failing to comply with an order to answer interrogatories, or for discovery are serious. In the case of the plaintiff, he may be liable to have his suit dismissed for want of prosecution and if it is the defendant, his defence can be struck out and the suit deemed undefended, and the party interrogating or seeking discovery be given order as though the suit was uncontested. It is, therefore, not enough reason to abandon a genuine claim for the mere reason that the documents which the claimant intends to rely on to prove his case are in the custody of his protagonist.

The standard of proof in civil cases is one of ‘a balance of probabilities,’ as opposed to ‘beyond reasonable doubt’, and all one needs to do is to convince the court that whatever he is saying could probably be true as compared to the other person’s story.

Having said that, I don’t imagine that any genuine employer would be so opposed to the request of an employee to have copies of some of these documents and it is, therefore, always good to ask.