Wells-Fargo Company Limited v Bisansio Opolo Ekodoi & another (Suing as Administrators and Legal Representatives of the Estate of the late) Vitalis Ebukoro Etyakoro [2020] KECA 677 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer only owes reasonable care, not a guarantee of safety, and overturned a Kshs 1.65 million award against a security company.
What this practically means
#Executive summary
#Key legal issues
#Scope of an employer's duty of care in dangerous cash in transit operations
The employer discharged its duty of reasonable care by engaging armed Administration police officers to escort the vehicle; failure to provide bullet proof vests or armoured vehicles did not constitute breach.
The Court applied Mumende vs. Nyali Golf & Country Club, adopting the position that the implied term in a contract of employment is that the employee takes incidental risks and the employer owes only a duty of reasonable care, not a warranty of safety. The evidence showed the appellant was alive to the risks and provided armed escort, helmets, safety boots and training. No evidence established an industry standard requiring bullet proof vests, and RW2 testified the incident was the first of its kind since 1977. Requiring such equipment would impose an unreasonably high, non-industry standard on the employer.
Duty of a first appellate court to re-evaluate evidence
The first appellate court must review and evaluate the evidence on record afresh, bearing in mind that it did not see or hear the witnesses.
The Court expressly invoked Selle vs. Associated Motor Boat Co Ltd and undertook a fresh evaluation of the testimony of CW1, RW1 and RW2. In doing so it found the trial Judge had relied entirely on the widow's evidence while making no reference at all to the testimony of the two defence witnesses, which contradicted her account that the cabin was locked and immobile. This failure of evaluation contributed to the erroneous finding on breach of duty.
Legal principles established
#- An employer's duty to an employee is a duty to take reasonable care not to subject the employee to unnecessary risk; the employer does not warrant the safety of working conditions nor is he an insurer of the employee's safety.
- A standard of care that is not an industry standard, however seemingly prudent, is unreasonable in the circumstances; an employer who provides armed security personnel for a cash in transit operation may discharge its reasonable duty of care without providing bullet proof vests or armoured vehicles.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the trial court is set aside
- 3.Each party shall bear its own costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 776 of 2010
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wells-Fargo Company Limited v Bisansio Opolo Ekodoi & another (Suing as Administrators and Legal Representatives of the Estate of the late) Vitalis Ebukoro Etyakoro [2020] KECA 677 (KLR)", Case Analysis (2020). Civil Appeal No. 112 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/677/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.