Redland Roses Limited v Hiribo Mohammed Fukisha
The bottom line
#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
#Executive summary
#Key legal issues
#Basis of employer's liability under the Workmen's Compensation Act
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
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.
Rebuttal of the statutory presumption of causation
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
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.
Computation of compensation under the Act
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)
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.
Jurisdiction of the High Court to award statutory compensation after rejecting the negligence claim
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
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.
Legal principles established
#- 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
#- 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.No order of costs of the appeal
- 3.The award of Kshs. 5,000/- as special damages, costs and interest remain intact
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Imbenzi v Kenya Breweries Limited[2019] KEHC 6586 (KLR)4 Jun 2019
Cite this brief
#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.