Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause 1115 of 2012· [2013] KEELRC 291 (KLR)

JOHN BARASA WASIKE & ANOTHER V DEVKI STEEL MILL LTD [2013] KEELRC 291 (KLR)

Industrial Court of Kenya
8 May 2013
MMM. Mbaru
3,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court held Devki Steel Mill liable for a worker's death, ruling that providing safety gear is not enough—employers must actively enforce safety and supervise workers.

What this practically means

#

Executive summary

#
The claimants, administrators of the estate of Edward Nekono Barasa, sued Devki Steel Mill Ltd for fatal injuries suffered by the deceased, a 25-year-old casual Igot Processor, on 16th August 2003 when a chain attached to a crane broke while lifting 920-kilogram moulds, causing the moulds to fall on him; he died two days later. The suit was originally filed at the Machakos High Court in 2004 and referred to the Industrial Court. The claim was brought under the Law Reform Act and the Fatal Accidents Act, with reliance also on res ipsa loquitur, and included special damages of Kshs.1,375. The respondent denied liability, pleaded compliance with its statutory and contractual duty of care, denied the accident and dependency, and invoked volenti non fit injuria, but called no evidence, opting only for written submissions. The court framed five issues, found the deceased was the respondent's employee injured at the respondent's premises, and accepted the unchallenged evidence of workmate Patrick Nzioki that the machines were poorly maintained. It held the respondent negligent and in breach of statutory duty under the repealed Employment Act and the Factories Act, rejected the volenti plea, and applied Eaves v Morris Motors on the employer's duty regarding foreseeable danger. It held compensation received under the Workman's Compensation Act did not bar the common law claim but offset it. Damages were assessed for pain and suffering, loss of dependency (multiplier of 20 years, two-thirds dependency), loss of expectation of life and special damages, and judgment was entered for the claimants for Kshs.1,065,282.00 with costs and interest at court rates.

Key legal issues

#
01

Whether the deceased was an employee of the respondent and whether the fatal accident occurred at the respondent's premises

Holding

The court found the deceased was employed by the respondent at the time of the accident, there being no evidence from the respondent to contradict the claimants' evidence.

Reasoning

The 1st claimant testified he was called by the respondent's personnel officer after the accident, and workmate Patrick Nzioki witnessed the accident on the night shift. The respondent called no evidence and filed only written submissions, so the claimants' uncontroverted evidence stood.

p. 4
02

Whether the respondent was negligent and in breach of statutory duty

Holding

The court found the respondent wholly liable, having failed to maintain the machinery and to take precautions against foreseeable injury, in breach of the Employment Act (Cap 226, repealed) and the Factories Act.

Reasoning

The unchallenged evidence was that the machine was poorly maintained and malfunctioned, lifting the deceased with a 920-kilogram mould. The respondent gave no evidence of any safety systems or precautions. The duty of care extended to foreseeable danger, and the breach occurred when precautionary measures were not provided.

p. 6
03

Whether the doctrine of volenti non fit injuria or contributory negligence by the deceased applied

Holding

The court rejected the respondent's plea that the deceased caused his own injuries, since there was no evidence the respondent took reasonable measures to prevent employees entering the trench or maintained its machines.

Reasoning

The respondent alleged the deceased entered the trench where moulds were kept, but adduced no evidence on the circumstances. Given the nature of the work it was reasonably expected an employee might get into the trench, and the employer bore the duty of supervision and precaution.

p. 5
04

Whether compensation already paid under the Workman's Compensation Act barred the common law claim

Holding

The court held it did not bar the claim but directed that the sum paid be deducted from the damages awarded.

Reasoning

Under the then-applicable law, compensation paid to an employee or estate did not prevent a claim in damages under common law or other written law; the Kshs. 301,080.00 received under the Work Injury Benefits Act was therefore offset.

p. 4

Legal principles established

#
  • An employer's duty extends beyond providing safe systems, appliances and protective gear; the employer must ensure the systems are followed and supervise employees, particularly those doing routine tasks who may become heedless of their own safety.
  • An employer cannot blame employees for failing to take precautions; the duty rests on the employer to prove that precautions were brought to the employees' attention and that they deliberately put themselves in harm's way.
  • A claimant must plead and prove negligence or breach of statutory duty on the part of the employer, res ipsa loquitur being an exception; compensation under the Workman's Compensation Act does not bar a claim in damages at common law.

Court orders

#
  1. 1.Judgment entered for the claimants in the sum of Kshs.1,065,282.00
  2. 2.The claimants shall have costs of the suit
  3. 3.Interest on the awarded sum at court rates
  4. 4.Deduction of the sum of Kshs. 301,080.00 already paid under the Workman's Compensation Act from the damages assessed

Authorities

#

Legislation

  • Employment Act, Chapter 226 Laws of Kenya (now repealed)
  • Workman's Compensation Act, Chapter 236 Laws of Kenya (now repealed)
  • Factories Act, Cap 514
  • Law Reform Act
  • Fatal Accidents Act
  • Work Injury Benefits Act
  • Industrial Court ActSection 12

Cases cited (1)

  • Eaves versus Morris Motors
    [1961] 2 Q.B. 384 to 386
Jurisdiction invoked
Section 12 of the Industrial Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "JOHN BARASA WASIKE & ANOTHER V DEVKI STEEL MILL LTD [2013] KEELRC 291 (KLR)", Case Analysis (2013). Cause 1115 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/291/eng@2013-05-08

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