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ELRCPartially AllowedCivil Appeal No. 7 of 2018 (formerly Nakuru High Court Civil Appeal No. 37 of 2014)· [2018] KEELRC 58 (KLR)

Jared Achinga Nyandika v Transafric Timber Ltd [2018] KEELRC 58 (KLR)

Employment and Labour Relations Court of Kenya
8 November 2018
MMM. Mbaru
2,390 words in judgment
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The bottom line

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Kenya's Employment Court ruled that an injured timber worker and his employer equally share blame for a factory accident, doubling his compensation share.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nakuru against the judgment and decree of the trial magistrate in CMCC No. 371 of 2012, in which the appellant, an employee of the respondent, had been injured on 27th February 2012 while operating at a breakdown department roller machine. He sued for general and special damages alleging employer negligence in failing to provide a safe working environment and protective gear. The trial court found both parties contributed to the accident and apportioned liability at 70/30% against the appellant. On appeal, the appellant sought the judgment set aside and the respondent held 100% liable. The court, guided by the principles governing first appeals, re-evaluated the evidence and found the respondent's version implausible because its sole witness did not witness the accident, while the employer's witnesses to the events were not called. Applying authorities on the employer's duty to provide safe working conditions, the court held that the employer's failure to ensure the appellant was not left alone to lift heavy timber and remove a log from a sharp machine amounted to negligence, though the appellant, experienced in the department, shared blame. The court varied the apportionment to 50/50, affirmed the general damages award of Kshs. 300,000, producing a net award of Kshs. 150,000, and awarded the appellant 50% of his costs. The appeal thus succeeded only in part.

Key legal issues

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01

Apportionment of liability for workplace injury

Holding

The trial court's 70/30 apportionment was varied to 50/50, as greater or full liability should fall on the employer who left the appellant alone to do work meant for two people on a dangerous machine

Reasoning

The court found the respondent's witness was not present at the accident scene and gave hearsay evidence. The employer's duty to ensure a safe working environment persisted even where protective gear and instructions had been provided. Leaving the appellant alone to lift heavy timber and remove a log from a sharp machine constituted employer negligence. However, the appellant's year of experience and decision to remove the log himself warranted sharing blame equally.

p. 3
02

Assessment of general damages

Holding

The award of Kshs. 300,000 in general damages was affirmed; only the liability apportionment changed, yielding a net award of Kshs. 150,000

Reasoning

The court applied the principle that assessment of damages is discretionary and interference is warranted only where an irrelevant factor was considered, a relevant one omitted, or the award was an erroneous estimate. The appellant sought a higher effective award via 100% liability; the court declined to disturb the quantum, adjusting only the apportionment.

p. 3

Legal principles established

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  • An employer bears a duty to provide safe working conditions and protective gear, and where an accident occurs while an employee handles machinery, the employer will be responsible to compensate the injured employee
  • On a first appeal, the court must re-evaluate the evidence and draw its own conclusions while giving allowance to the trial court's advantage of seeing and hearing witnesses
  • An appellate court will only interfere with the assessment of damages where the trial court took into account an irrelevant factor, left out a relevant factor, or the award was too high or too low as to be an erroneous estimate

Court orders

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  1. 1.The appeal succeeds in part
  2. 2.The award of general damages of Kshs. 300,000 is affirmed
  3. 3.Liability is apportioned at 50%:50% between the appellant and the respondent, reducing the net general damages to Kshs. 150,000
  4. 4.The appellant is awarded 50% of his costs

Authorities

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Cases cited (9)

  • Muthuku versus Kenya Cargo Service Ltd
    [1991] 1 KLR
  • Wakim Sodas Limited versus Sammy Aritos
    [2017] eKLR
  • Peters –vs- Sunday Post Limited
    [1958] EA 424
  • Watt –vs- Thomas
    [1947] A.C
  • Mumias Sugar Co. Ltd versus Charles Namatiti
    CA 151 of 1987
  • Simba Posho Mills Ltd versus Fred Michira Onguti
    [2005] eKLR
  • Kemfro Africa Ltd t/a Meru Express & Another versus A. M. Lubia and Another
    [1982-88] 1 KAR 727
  • Peter M. Kariuki versus Attorney General
    CA Civil Appeal No. 79 of 2012 [2014] eKLR
  • Bashir Ahmed Butt versus Uwais Ahmed Khan
    [1982-88] KAR 5
On appeal from
Chief Magistrate's Court at Nakuru
CMCC No. 371 of 2012
Jurisdiction invoked
First appeal from the magistrates' court to the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jared Achinga Nyandika v Transafric Timber Ltd [2018] KEELRC 58 (KLR)", Case Analysis (2018). Civil Appeal No. 7 of 2018 (formerly Nakuru High Court Civil Appeal No. 37 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/58/eng@2018-11-08

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