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Court of AppealPartially AllowedCivil Appeal No. 84 of 2011· [2015] KECA 957 (KLR)

Redland Roses Limited v Hiribo Mohammed Fukisha

Court of Appeal
30 January 2015
3,573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed employers bear the burden of disproving work-related disease, but slashed the compensation award to the statutory cap.

What this practically means

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Executive summary

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The respondent, formerly a chemical sprayer in the appellant's rose farm at Ruiru, sued claiming special and general damages for chemical hepatitis, dermatitis and pneumonitis allegedly caused by exposure to hazardous chemicals. The High Court (Ojwang', J.) rejected the common law negligence claim but found the appellant liable under the Workmen's Compensation Act (Cap 236), relying on s.35 and the Third Schedule, and awarded Kshs. 806,280/- computed as 23 years' loss of future earnings, plus Kshs. 5,000/- special damages and costs. The appellant appealed against liability and quantum. The Court of Appeal held that liability under the Act is no-fault statutory liability: the employee need not prove negligence or causation, statutory presumptions favour the employee, and the onus lies on the employer to disprove the causal link on a balance of probabilities. The appellant's evidence, including that of Prof. Guantai and Dr. Ochieng', was not cogent enough to rebut the s.38 presumption, and no alternative causative agent was shown; the finding of occupational disease was therefore affirmed. However, the Court found the learned Judge erred in principle by computing compensation as general damages for loss of earnings over 23 years rather than under the Act's caps. Making a favourable finding of permanent total incapacity from dermatitis, the Court substituted an award of Kshs. 181,800/- (sixty months' earnings). The appeal was allowed to that extent only, with no order as to costs given the drastic reduction in the award; the special damages award, costs and interest in the High Court remained intact.

Key legal issues

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01

Basis of employer's liability under the Workmen's Compensation Act

Holding

Liability for occupational disease under the Act is no-fault statutory liability; the employee bears no burden of proving negligence or causation, and the statutory presumption under s.38 favours the employee

Reasoning

The Court held that statutory compensation rests on an altruistic legal policy that the employer compensates employees for injuries and occupational diseases as inherent risks of employment. Statutory presumptions favour the employee; the employer must disprove the causal link on a balance of probabilities. The High Court's finding of occupational disease was therefore correct and was affirmed on re-appraisal of the evidence.

p. 4
02

Rebuttal of the statutory presumption of causation

Holding

The evidence of Prof. Guantai and Dr. Ochieng' was not cogent enough to rebut the presumption; the appellant produced no concrete evidence of any alternative causative agent

Reasoning

The Court re-appraised the medical evidence and found that the reports of Dr. Ochieng' and the testimony of Prof. Guantai (who was not a medical doctor) did not cogently rebut the presumption that the disease was due to the nature of the respondent's employment as a sprayer. The appellant also failed to produce concrete evidence that any agent other than the spraying chemicals caused the diseases.

p. 5
03

Computation of compensation under the Act

Holding

The learned Judge erred in principle by computing compensation as general damages for loss of future earnings over 23 years, independent of the Act; the correct computation was 60 months' earnings for permanent total incapacity (Kshs. 3,030 x 12 x 5 = Kshs. 181,800)

Reasoning

What is awarded under the Act is statutory compensation, not damages, and is capped by the Act. The maximum for permanent total incapacity under s.7(1) is sixty months' earnings. Despite inconclusive medical reports, the Court made a favourable finding that the respondent suffered permanent total incapacity from dermatitis and recomputed the award accordingly.

p. 6
04

Jurisdiction of the High Court to award statutory compensation after rejecting the negligence claim

Holding

Under s.25(2) of the Act, the High Court had jurisdiction, after finding the employer not liable for negligence, to determine and assess compensation under the Act

Reasoning

Section 25(1) allows an employee to sue in civil court independently of the Act where injury was caused by the employer's personal negligence or willful act. Section 25(2) permits the court, on finding the employer not liable, to determine whether compensation under the Act is payable and assess it, deducting extra costs incurred by the employer. The High Court therefore properly exercised this jurisdiction.

p. 5

Legal principles established

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  • Liability for statutory compensation under the Workmen's Compensation Act is on a no-fault basis; the employee need not prove negligence and the onus is on the employer to disprove the causal link on a balance of probabilities
  • Where a scheduled occupational disease is certified, a statutory presumption of causation arises under s.38, rebuttable only by cogent contrary evidence
  • Wilsher v Essex Area Health Authority applies only to negligence-based claims, not to statutory liability coupled with a presumption of causation
  • Compensation under the Act is statutory compensation, not damages, and a court cannot award more than the Act stipulates
  • Under s.25(2) of the Act, where an employer is found not liable in independent civil proceedings, the court may proceed to determine and assess compensation under the Act

Court orders

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  1. 1.The award of Kshs. 806,280/- as compensation under the Workmen's Compensation Act is set aside and substituted with an award of compensation of Kshs. 181,800/-
  2. 2.No order of costs of the appeal
  3. 3.The award of Kshs. 5,000/- as special damages, costs and interest remain intact

Authorities

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Legislation

  • Workmen's Compensation Act (Cap 236)s.5
  • Workmen's Compensation Act (Cap 236)s.6(a)
  • Workmen's Compensation Act (Cap 236)s.7(1)
  • Workmen's Compensation Act (Cap 236)s.8(1)(a)
  • Workmen's Compensation Act (Cap 236)s.13
  • Workmen's Compensation Act (Cap 236)s.17(2)
  • Workmen's Compensation Act (Cap 236)s.22(1)
  • Workmen's Compensation Act (Cap 236)s.25(1)
  • Workmen's Compensation Act (Cap 236)s.25(2)
  • Workmen's Compensation Act (Cap 236)s.35(1),(2),(3)
  • Workmen's Compensation Act (Cap 236)s.37(2)
  • Workmen's Compensation Act (Cap 236)s.38
  • Workmen's Compensation Act (Cap 236)Third Schedule
  • Work Injury Benefits ActAct No. 13 of 2007

Cases cited (2)

  • Wilson Nyanya Mosigisi v. Sasini Tea & Coffee Limited
    [2006] eKLR

    That an employer's liability under the Workmen's Compensation Act is on a no-fault basis and negligence need not be proved

  • Wilsher v Essex Area Health Authority
    [1988] 1 All ER 871

    That multiple possible causes do not raise a presumption of causation - held applicable only to negligence claims, not statutory liability

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 564 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment and decree of the High Court (statutory appeal; no constitutional provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Redland Roses Limited v Hiribo Mohammed Fukisha", Case Analysis (2015). Civil Appeal No. 84 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/957/eng@2015-01-30

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