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ELRCPartially AllowedCivil Appeal Number 24 of 2008 (originally Mombasa CMCC Number 4117 of 2003)· [2016] KEELRC 1501 (KLR)

Victor Ndege Manase v Ashton Apparels [EPZ] Limited [2016] KEELRC 1501 (KLR)

Employment and Labour Relations Court
18 March 2016
JRJames Rika
2,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan appeal court found an employer 100% liable for a worker's chemical injury because it made him use industrial chemicals on his skin without training or protection.

What this practically means

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Executive summary

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The Appellant, employed by the Respondent Textiles Company as a Press-man, sued in Mombasa CMCC No. 4117 of 2003 claiming he suffered chemical burns leading to amputation of part of his right index finger after being instructed to label cartons using industrial adhesive and then to remove the adhesive from his hands using white petrol sprayed from an electric gadget he called gun petrol. The Trial Court dismissed the claim, finding no one had explained what gun petrol was and that the claim was not proved on a balance of probabilities. On appeal to this Court, the Appellant argued the Trial Court adopted the wrong standard of proof, disregarded medical evidence, wrongly credited the defence witnesses, and failed to find a breach of the employer's duty to provide a safe system of work. The Respondent urged non-interference, relying on Ephantus Mwangi v. Duncan Mwangi Wambugu on the limits of appellate interference with factual findings. The Court found the Appellant himself had adequately explained the apparatus, that medical evidence from Dr. Patel and the Upendo Clinic Clinical Officer was clear and consistent, and that the defence account of a herbalist was not credible. It held that instructing an untrained employee to handle industrial adhesives without gloves and to clean them off his skin with stain-removing chemicals was not a safe system of work and amounted to negligence, finding the Respondent 100% liable. Assessing damages against comparable awards and inflation, the Court allowed the appeal, awarding Kshs. 200,000 general damages and Kshs. 2,000 special damages, with 14% interest if unpaid within 30 days, and ordered each party to meet their own costs of the Trial and the Appeal.

Key legal issues

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01

Whether the Trial Court erred in finding the Appellant had not proved his case on a balance of probabilities

Holding

The Trial Court erred; there was sufficient evidence on the substance and apparatus causing the injury and clear medical evidence, so the Claim was established on a balance of probabilities

Reasoning

The Appellant himself explained the industrial tools in use: white petrol held in an electric gadget he called gun petrol, used to spray stains. Dr. Patel confirmed the injury was caused by gun petrol, which is like acid. The Trial Court's finding that no one explained what gun petrol is was factually wrong, and the Court could even have consulted industrial sources on cleaning spray guns. Medical evidence from Dr. Patel and the Clinical Officer was consistent and convincing, and the defence story of a herbalist was not believable.

p. 4
02

Whether the Respondent provided a safe system of work

Holding

The Respondent failed to provide a safe system of work and was negligent and 100% liable for the accident and injury

Reasoning

The Appellant, a Press-man untrained in labelling, was instructed to stick labels using industrial adhesive without gloves, and then to clean the adhesive off his skin using white petrol sprayed from a Petrol Gun - chemicals not meant for human skin. The employer's evidence did not show what safe system of work was availed. These instructions smacked of negligence, and the employer did not meet its obligations under the authorities cited.

p. 4
03

Assessment of damages

Holding

General damages assessed at Kshs. 200,000 and special damages at Kshs. 2,000, with interest at 14% per annum if unpaid within 30 days

Reasoning

The Court considered the parties' comparator awards - Shadrack Zacharia Omaiyo v. Road Services Limited (Kshs. 385,000 for loss of two fingers, 17% disability) and Joseph William v. Kenya Cargo Handling Services Limited (Kshs. 100,000 for finger injuries) - the period when those decisions were made, the dip in the value of the shilling and purchasing power, and the Appellant's injuries: amputation of the last two phalanges of the right index finger, weak grip and 8% permanent disability.

p. 5

Legal principles established

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  • An employer's instructions to an employee to perform untrained tasks with industrial chemicals and without protective gear do not comprise a safe system of work and amount to negligence
  • An appellate court interferes with findings of fact of the lower court only where the findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The Appeal is allowed
  2. 2.General damages of Kshs. 200,000 and special damages of Kshs. 2,000 (total Kshs. 202,000) to be paid by the Respondent to the Appellant within 30 days of delivery of the Judgment
  3. 3.The principal sum to attract interest of 14% per annum from the date of Judgment if unpaid within the given 30 days
  4. 4.Parties shall meet their costs of the Trial and the Appeal

Authorities

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Cases cited (6)

  • Amani Kufaa Bakari v. Wananchi Marine Products [K] Limited
    Mombasa H.C.C.C. Number 209 of 2007
  • Sakoro Saw Mills Limited v. Benard Muthimbi Njenga
    Nakuru H.C.C.A Number 38 of 1995
  • Peter Abuya v. Vipingo Estate Limited
    Nairobi H.C.C.C Number 6212 of 1990
  • Ephantus Mwangi v. Duncan Mwangi Wambugu
    [1984] e-KLR
  • Shadrack Zacharia Omaiyo v. Road Services Limited
    Mombasa H.C.C.C Number 99 of 1999
  • Joseph William v. Kenya Cargo Handling Services Limited & Anor.
    Mombasa H.C.C.C Number 843 of 1987
On appeal from
Chief Magistrate's Court, Mombasa
C.M.C.C Number 4117 of 2003
Jurisdiction invoked
Transferred to the Employment and Labour Relations Court by the High Court on the ground of jurisdiction (employment and labour relations dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Victor Ndege Manase v Ashton Apparels [EPZ] Limited [2016] KEELRC 1501 (KLR)", Case Analysis (2016). Civil Appeal Number 24 of 2008 (originally Mombasa CMCC Number 4117 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1501/eng@2016-03-18

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