Redshank Limited v Teresia Auma Akwavi [2019] KEELRC 381 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proof of workplace injury despite absence of occurrence book entry on the date of accident
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
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.
Employer liability for failure to provide protective gear
There was no evidence the appellant complied with its statutory duty to provide appropriate work apparel; breach of that duty attracted liability
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.
Duty of a first appellate court
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.