Kenya Ports Authority [KPA] v Oliver K. Mwasaru [2015] KEELRC 20 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court confirmed that employers must do far more than hand out protective gear to keep casual workers safe.
What this practically means
#Executive summary
#Key legal issues
#Apportionment of liability for workplace injury between employer and casual employee
The 85%/15% apportionment in favour of the employee could not be faulted; the employer bore the heavier duty
The employer has a duty under legislation and common law to provide a safe workplace, maintain machinery, prevent exposure to hazards, and train employees. No material showed the casual employee had been trained or educated adequately; no training manuals or programmes were exhibited. That fellow employees escaped unhurt was not a relevant consideration, and mere supply of gloves was inadequate.
Whether the award of general damages warranted appellate interference
The award of Kshs. 400,000 less 15% contributory negligence was fair and not excessive
Applying the Kemfro Africa principles, no irrelevant factor was considered and none omitted. The award considered the dates of comparable decisions, devaluation of the Kenyan currency and inflationary trends. The Appellant's proposed Kshs. 70,000 was inordinately low, so no basis existed for interference with quantum.
Whether the decision was against the weight of the evidence
It was not; the evidence of injury and occurrence of the accident was largely undisputed
The medical evidence was not contested and the occurrence of the accident was largely undisputed. The respondent testified he was not trained, contradicted by DW2, but the appellant's own witnesses could not apportion blame for the accident. The trial court's finding of familiarity with the role and 15% contribution was open to it on the evidence.
Legal principles established
#- An appellate court may interfere with the quantum of damages awarded by a trial court only where the trial court took into account an irrelevant factor or left out a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate of the damage
- Employers who engage casual employees must ensure such employees receive adequate training and are conversant with health and safety measures at the workplace
- Mere supply of gloves by an employer is not an adequate safety measure
Court orders
#- 1.The Appeal is dismissed on both grounds
- 2.Costs of the Appeal to the Respondent
- On appeal from
- Senior Resident Magistrate's Court at Mombasa (transferred from the High Court at Mombasa)
- Civil Appeal Number 50 of 2007 (High Court) originating from a claim in the Magistrate's Court at Mombasa
- Jurisdiction invoked
- Appeal transferred from the High Court to the Employment and Labour Relations Court on the ground that the dispute, being an employment matter, no longer falls within the High Court's jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority [KPA] v Oliver K. Mwasaru [2015] KEELRC 20 (KLR)", Case Analysis (2015). Appeal Number 3 of 2015 (formerly Civil Appeal Number 50 of 2007, High Court Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/20/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.