Githae v Subati Flowers Ltd (Civil Appeal 81 of 2019) [2024] KECA 60 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Causation and liability apportionment in employer's negligence
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.
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.
Statutory duties of employer and employee under the Occupational Safety and Health Act
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.
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.
Standard of proof in civil cases
The standard of proof in civil cases is a balance of probability, not proof beyond reasonable doubt.
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.
Findings and reliefs on unpleaded issues
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.
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.
Legal principles established
#- 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
#- 1.The judgment of the E&LRC is set aside
- 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.The respondent shall bear the costs of this appeal and the appeal before the E&LRC
- 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
#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.
- Festus Muema alias Nzala Nzioka v Ragos Trading Co. Ltd alias Ragos Transporters[2026] KEMC 981 (KLR)30 Sept 2026applied
Cite this brief
#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.