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Court of AppealPartially AllowedCivil Appeal 281 of 2004· [2007] KECA 188 (KLR)

Eveready Batteries (K) Limited v Simon Kinyua [2007] KECA 188 (KLR)

Court of Appeal of Kenya
27 September 2007
Philip Kiptoo TunoiP. K. TunoiEOE. O. O'KubasuEGE. M. Githinji
4,644 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a Kshs 4.3 million award against Eveready Batteries, ruling the worker failed to prove his employer broke safety duties.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Tunoi, O'Kubasu and Githinji, JJA) allowed this first appeal by Eveready Batteries (K) Limited against the High Court's award of Kshs.4,327,872/- to Simon Kinyua, a former machine operator retired on medical grounds in 2002 after respiratory illness allegedly caused by exposure to dust, fumes and chemicals at the appellant's Nakuru factory. The claim was framed under the Factories Act (Cap. 514), particularly sections 51 and 53, which oblige employers to take practicable measures against inhalation of dust and fumes and to provide protective clothing and appliances. Re-evaluating the evidence as required on a first appeal, the Court held that the respondent failed to prove breach of statutory duty on the balance of probability. Although the trial Judge found masks were not freely available and required written requisition, the Court found that conclusion was not based on the available evidence: the respondent did not deny being supplied with masks, and the appellant's exhibits and the evidence of Mumala (DW5) and the industrial hygienist Lawrence (DW6) established respirator supply, safety training and environmental monitoring. The Court also endorsed the exclusion of the appellant's expert, Dr. Aluoch, whose investigations were conducted without notice to the respondent. The High Court judgment, decree and consequential orders were set aside in their entirety, with costs of the appeal and the suit awarded to the appellant.

Key legal issues

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01

Whether the appellant breached its statutory duty under the Factories Act by failing to take practicable measures against inhalation of dust and fumes

Holding

The Court found no breach: the respondent and other employees were provided with the necessary masks and the appellant took the necessary measures to ensure a safe and healthy working environment.

Reasoning

The Court re-evaluated the evidence on the first appeal. Exhibits 10-13 showed the appellant assessed the working environment by random employee testing; Mumala (DW5) and Lawrence (DW6) gave evidence of safety training, monitoring and respirator supply. The respondent never denied being supplied with masks, only their adequacy, so the trial Judge's finding that masks were not freely available was unsupported by the evidence. Section 51(1) requires only practicable measures, which were taken.

p. 9
02

Admissibility of expert evidence obtained through unilateral investigations

Holding

The Court upheld the exclusion of Dr. Aluoch's evidence, given that he had visited the factory, interviewed third parties and carried out investigations without notice to the respondent.

Reasoning

The trial Judge disregarded the evidence of Dr. Joseph Aluoch (DW2) because his report was based on secret investigations conducted without any notice or warning to the respondent. The Court of Appeal expressly agreed with the trial Judge's remarks and confirmed the evidence was properly excluded, endorsing fairness in the preparation of expert evidence.

p. 5

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions, while allowing for the fact that it neither saw nor heard the witnesses.
  • Practicable measures under section 51 of the Factories Act to protect workers against inhalation of dust include the provision of masks and steps to induce workmen to wear them (adopted from Crookall v Vickers-Armstrong Ltd).
  • A plaintiff alleging breach of statutory duty bears the burden of proving negligence on the part of the employer.

Court orders

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  1. 1.The judgment and decree of the superior court together with all consequential orders are set aside in their entirety
  2. 2.The appellant is awarded the costs of this appeal and of the suit in the superior court

Authorities

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Legislation

  • Factories Act (Cap. 514 Laws of Kenya)Preamble
  • Factories Act (Cap. 514 Laws of Kenya)Section 35
  • Factories Act (Cap. 514 Laws of Kenya)Section 36
  • Factories Act (Cap. 514 Laws of Kenya)Section 51(1)
  • Factories Act (Cap. 514 Laws of Kenya)Section 53

Cases cited (3)

  • Selle v Associated Motor Boat Company
    [1968] E.A. 123
  • Jivanji v Sanyo Electrical Company Ltd.
    [2003] KLR 425
  • Crookall v Vickers-Armstrong Ltd
    [1955] 2 All E.R. 12
On appeal from
High Court of Kenya at Nakuru
H.C.C. Suit No. 98 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eveready Batteries (K) Limited v Simon Kinyua [2007] KECA 188 (KLR)", Case Analysis (2007). Civil Appeal 281 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/188/eng@2007-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.