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Court of AppealPartially AllowedSecond Appeal from ELRC Appeal No. 31 of 2018 (Civil Suit No. 642 of 2015, Chief Magistrate's Court at Nakuru)· [2024] KECA 60 (KLR)

Githae v Subati Flowers Ltd (Civil Appeal 81 of 2019) [2024] KECA 60 (KLR)

Court of Appeal
2 February 2024
2,425 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 an employer must pay full compensation for a worker's fall caused by its defective ladder, rejecting blame on the worker's missing helmet.

What this practically means

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Executive summary

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This second appeal arose from a workplace accident of 2nd July 2012 in which John Kariuki Githae, a general labourer with Subati Flowers Ltd, fell from a metal bar ladder while replacing polythene sheeting on a greenhouse and suffered serious neck and back injuries. The trial court found the employer 100% liable and awarded general damages of Ksh. 1,000,000 and special damages of Ksh. 4,000. On first appeal, Mbaru, J. of the ELRC at Nakuru partially allowed the employer's appeal, apportioning liability 50:50 on the ground that the appellant had failed to don a helmet issued to him, while affirming quantum. The Court of Appeal (Nyamweya, Ochieng and Korir, JJ.A) allowed the appellant's appeal. Confining itself to matters of law, the court held that the first appellate judge misapplied the principle of causation: there was no connection between the failure to wear a helmet and the accident, since the injuries were of a kind a helmet could not prevent, the fall resulted from a defective ladder, and the employer bore the duty of providing supervision and safe tools. The court set aside the ELRC judgment, reinstated and upheld the trial court's judgment, and awarded the appellant the costs of both appeals. Quantum was left undisturbed as it was never challenged.

Key legal issues

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01

Causation and liability apportionment in employer's negligence

Holding

There was no causal connection between the appellant's failure to wear a helmet and his fall injuries; the accident was caused by a defective ladder and absence of supervision, for which the employer is 100% liable.

Reasoning

A helmet protects against head injuries, but the appellant's injuries were to the neck and back from a fall of 20 feet when the metal bar ladder snapped. The helmet therefore could not have prevented the accident or the injuries. The employer had the duty to provide a supervisor and safe tools; there was no evidence the appellant knew of and failed to report the ladder's defect. The first appellate court's 50:50 apportionment therefore rested on an erroneous finding of causation and was set aside.

p. 4
02

Statutory duties of employer and employee under the Occupational Safety and Health Act

Holding

Section 6 of the OSHA, 2007 places a general duty on the employer to ensure workplace safety, while section 13(1)(a) requires employees to ensure their own safety; liability must nonetheless be established through evidence.

Reasoning

The court recognised the dual statutory duties: the occupier must ensure the safety, health and welfare of all persons at work, while employees must ensure their own safety and that of others affected by their acts or omissions. However, liability is not automatic; it must be proved on a balance of probability in line with sections 107 and 108 of the Evidence Act.

p. 3
03

Standard of proof in civil cases

Holding

The standard of proof in civil cases is a balance of probability, not proof beyond reasonable doubt.

Reasoning

The court reminded itself that the civil standard differs from the criminal standard before assessing whether the findings of the first appellate court flowed from the evidence.

p. 3
04

Findings and reliefs on unpleaded issues

Holding

Findings and reliefs cannot originate from issues not pleaded, as the appellant argued citing North Kisii Central Farmers and Wareham; the court accepted this contention.

Reasoning

The appellant submitted that the helmet issue was neither pleaded nor raised before the trial court, and that no findings or reliefs could flow from unpleaded issues. The court's ultimate holding that the helmet could not causally be linked to the injury vindicates this submission.

p. 2

Legal principles established

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  • On a second appeal the Court confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered.
  • A claimant must prove that the alleged negligent cause was actually capable of causing, and did cause, the damage; the law does not presume in favour of the plaintiff that the tortious cause was responsible.
  • Causation in negligence is determined by applying common sense to the facts of each particular case, discarding causes too remote.
  • An employer bears the duty to ensure a supervisor is available and that tools provided to workers are in good condition and safe for the required task.

Court orders

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  1. 1.The judgment of the E&LRC is set aside
  2. 2.The trial court's judgment (100% liability against the respondent, general damages of Ksh. 1,000,000 and special damages of Ksh. 4,000) is reinstated and upheld
  3. 3.The respondent shall bear the costs of this appeal and the appeal before the E&LRC

Authorities

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Legislation

  • Civil Procedure Actsection 72(1)
  • Occupational Safety and Health Act, 2007section 6 (including sub-section (1))
  • Occupational Safety and Health Act, 2007section 13(1)(a)
  • Evidence Actsections 107 and 108

Cases cited (8)

  • Kenya Breweries Ltd v Godfrey Odoyo
    [2010] eKLR
  • Stanley N. Muriithi & Another v Bernard Munene Ithiga
    [2016] eKLR
  • North Kisii Central Farmers Ltd v Jeremiah Mayaka Ombui & 4 others
    [2014] eKLR
  • Anthony Francis Wareham t/a Wareham & 2 others v Kenya Post Office Savings Bank
    [2004] eKLR
  • Pithoni Waweru Maina v Thuka Mugiria
    [1983] eKLR
  • Kay v Ayrshire and Arran Health Board
    987 All ER 417
  • Purity Wambui Murithii v Highlands Mineral Water Co. Ltd
    [2015] eKLR
  • Stapley v Gypsum Mines Ltd, (2)
    (1953) A.C. 663
On appeal from
Employment and Labour Relations Court at Nakuru
Appeal No. 31 of 2018
Jurisdiction invoked
Second appeal to the Court of Appeal from the ELRC (no constitutional/statutory provision expressly 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, "Githae v Subati Flowers Ltd (Civil Appeal 81 of 2019) [2024] KECA 60 (KLR)", Case Analysis (2024). Second Appeal from ELRC Appeal No. 31 of 2018 (Civil Suit No. 642 of 2015, Chief Magistrate's Court at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/60/eng@2024-02-02

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