James Gichana Ondeu & Josephine Kerubo (suing as the legal administrators of the Estate of the Late Ezekiel Kagwimi Gichana (Deceased) v Kenya Shield Security Limited (Appeal 35 of 2017) [2018] KEELRC 14 (KLR)
The bottom line
#An employer who fails to provide safety equipment like a helmet is fully responsible when a worker dies on the job in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent employer was liable for the death of the deceased security guard killed during a robbery at his duty station
The employer was liable 100% because it failed to provide a helmet and other protective devices, and its own witnesses confirmed this, contradicting its defence
Employment of the deceased and his death while on duty at Nakuru Golf Club were not in contest. The defence pleaded that a helmet and rungus were provided, but the respondent's own witnesses confirmed no helmet was issued to night guards. The failure to issue the helmet contributed to the fatal head injury, shifting the burden to the respondent to show the employee was not placed at risk. The respondent did not discharge that burden.
Whether the appellants proved their case on a balance of probabilities
Yes; the appellants proved injury while at the respondent's work station and the respondent's own evidence supported this fact
The court found no justification for a contrary finding. The respondent's evidence confirmed the deceased was not provided with a helmet, which was supportive of the appellants' case. The death certificate showed haemorrhage and head injury consistent with the absence of head protection.
Whether the trial magistrate erred in dismissing the appellants' case and in the assessment of damages
The magistrate erred in dismissing the case in its totality; the court confirmed an assessment of Kshs. 460,000.00 plus unchallenged special damages of Kshs. 10,000.00
The court applied the principle that an appellate court interferes with damages only where the award is based on a wrong principle or is wholly erroneous. The trial assessment of Kshs. 470,000.00 was adjusted: Kshs. 360,000.00 loss of dependency and Kshs. 100,000.00 pain and suffering were confirmed, and a Kshs. 10,000.00 head whose basis was not set out was removed, with special damages of Kshs. 10,000.00 left intact as unchallenged.
Legal principles established
#- The employment relationship creates a duty of care on the employer to take all reasonable precautions for the safety of the employee and provide a safe system of work
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- Where an employer's own witnesses confirm non-provision of protective equipment, the burden shifts on the employer to prove the employee was not placed at risk
- An employer knowing the nature of the work must provide safety gears; breach of that duty causes the injury and the employer is liable in full
Court orders
#- 1.Appeal succeeds to the extent set out in the judgment
- 2.Finding that the respondent is liable 100% for the damage
- 3.Award of damages confirmed at Kshs. 460,000.00 being loss of dependency and pain and suffering (Kshs. 360,000.00 loss of dependency and Kshs. 100,000.00 pain and suffering)
- 4.Special damages of Kshs. 10,000.00 awarded as not challenged
- 5.Removal of the Kshs. 10,000.00 award whose basis was not set out (subsumed in the confirmed figure)
- 6.Costs of the appeal to the Appellant
- On appeal from
- Principal Magistrate's Court, Nakuru
- CMCC No. 1256 of 2003
- Jurisdiction invoked
- Appeal transferred to the Employment and Labour Relations Court as a matter arising from employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Gichana Ondeu & Josephine Kerubo (suing as the legal administrators of the Estate of the Late Ezekiel Kagwimi Gichana (Deceased) v Kenya Shield Security Limited (Appeal 35 of 2017) [2018] KEELRC 14 (KLR)", Case Analysis (2018). Appeal No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/14/eng@2018-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.