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ELRCDismissedELRC Appeal No. 9 of 2019 (formerly Nakuru High Court Civil Appeal No. 3 of 2016)· [2019] KEELRC 381 (KLR)

Redshank Limited v Teresia Auma Akwavi [2019] KEELRC 381 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
7 November 2019
1,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld an award against an employer who failed to provide protective gear, confirming hospital records can prove a workplace injury even without occurrence book entries.

What this practically means

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Executive summary

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This is a first appeal in the Employment and Labour Relations Court at Nakuru against the judgment and decree of the Resident Magistrate at Molo (Molo SPMCC No. 173 of 2013), delivered on 17th December, 2015, which found the appellant employer 70% liable for a workplace accident of 23rd April, 2010 in which the respondent, a general worker, suffered a deep cut to the right wrist and soft tissue injuries while pruning seedlings. The trial court awarded general damages of Ksh.60,000 and special damages of Ksh.8,190, totalling Ksh.50,190 after apportionment, plus costs. The appellant raised four grounds: absence of an occurrence book entry for the accident date; lack of proof of treatment at Nakuru provincial hospital; error in apportioning liability; and award of damages for unproved injuries. The court, on a first appeal, reappraised the evidence. It found hospital records produced by the primary custodian confirmed the respondent's admission on 23rd April, 2010 following a workplace accident, and the occurrence book extract produced by the appellant contained entries only from 27th April, 2010 onwards, failing to disprove the accident. The respondent testified she was never issued protective clothing, and the court held the employer breached its statutory duty to provide safety apparel, rendering it liable. Applying Kiruga v Kiruga, the court declined to substitute its own factual findings. The appeal was found without merit and dismissed, with costs of the appeal awarded to the respondent.

Key legal issues

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01

Proof of workplace injury despite absence of occurrence book entry on the date of accident

Holding

Hospital records produced by the primary custodian confirmed the respondent was admitted at Nakuru provincial general hospital on 23rd April, 2010 following a workplace accident; the occurrence book extract showed reports only from 27th April, 2010 onwards, and its absence for the accident date did not disprove the injury

Reasoning

The court found exhibit 3 confirmed admission at the hospital on the accident date, produced by the primary custodian. The occurrence book extract produced by the appellant contained entries from 27th April, 2010 to September 2010 but nothing prior to 27th April, 2010, so it did not demonstrate that no occurrence took place on 23rd April, 2010. The appellant's reliance on later dates failed to controvert the claim.

p. 2
02

Employer liability for failure to provide protective gear

Holding

There was no evidence the appellant complied with its statutory duty to provide appropriate work apparel; breach of that duty attracted liability

Reasoning

The respondent testified she was never issued with protective clothing and slipped while pruning seedlings. The court held that failure to provide apparel to ensure safety rendered the employer liable for the resulting accident, and long familiarity with the work was no defence to breach of statutory duty.

p. 2
03

Duty of a first appellate court

Holding

The court on first appeal re-examines the evidence afresh and draws its own conclusions but is slow to overturn trial court findings on credibility

Reasoning

Citing Kiruga v Kiruga, the court noted it could not substitute its own factual findings unless there was no evidence to support them or the trial judge was plainly wrong. The trial court had the advantage of hearing the witnesses and taking primary evidence, and the court found no material justifying review or setting aside of the judgment.

p. 3

Legal principles established

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  • A first appellate court must re-examine the evidence afresh but be slow in overturning trial court findings, not having seen or heard the witnesses
  • An appellate court cannot substitute its own factual findings for those of a trial court unless there is no evidence to support the finding or the judge is plainly wrong
  • Where an employer fails to provide the employee with protective apparel to ensure safety and an accident results, the employer is liable
  • Long service with an employer is no defence to breach of statutory duty to ensure employee safety

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Evidence ActSections 107 and 108

Cases cited (6)

  • Latimer versus AEC
    [1953] AC
  • Mumias Sugar Co. Ltd versus Samson Munyinda
    HCCA No.58 of 2000 (Kakamega)
  • Kiruga versus Kirunga
    [1988] KLR
  • Kiruga versus Kiruga & Another
    [1988] KLR 348
  • Boniface Muthama Kavita versus Carton Manufactures Ltd
    [2015] eKLR
  • Spinners and Spinners Ltd versus Alex Andayi Atieli
    [2014] eKLR
On appeal from
Principal Magistrate's Court at Molo
Molo SPMCC No. 173 of 2013
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court against the judgment and decree of the Resident Magistrate's Court in Molo SPMCC No. 173 of 2013

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, "Redshank Limited v Teresia Auma Akwavi [2019] KEELRC 381 (KLR)", Case Analysis (2019). ELRC Appeal No. 9 of 2019 (formerly Nakuru High Court Civil Appeal No. 3 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/381/eng@2019-11-07

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