Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedAppeal against judgment in Nyando SRMCC No. 225 of 2016· [2019] KEELRC 835 (KLR)

Chemelil Sugar Company Limited v George Omondi Athembo [2019] KEELRC 835 (KLR)

Employment and Labour Relations Court
18 September 2019
2,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that an employer is not liable when an employee is attacked by strangers on the way to work.

What this practically means

#

Executive summary

#
This was a first appeal to the Employment and Labour Relations Court against the judgment of Mbugua SRM in Nyando SRMCC No. 225 of 2016, which had found the appellant employer, Chemelil Sugar Company, vicariously liable at 70% for injuries the respondent sustained when he was assaulted and robbed by unknown assailants on the night of 17th September 2005 while cycling to a 10 p.m. night shift, and had awarded him Kshs. 180,000 in general damages. The respondent testified that he was attacked within the company's Jogoo estate/sugar plantation about a kilometre from the factory by persons he believed wore company security uniforms, but he never identified them, never reported the matter to police, and had not clocked in at work. The appellant's witnesses confirmed the attack location and that employees made their own transport arrangements with no designated route. Applying the Selle v Associated Motor Boat Co Ltd first-appeal standard, the court held that there was no contractual or statutory obligation on the employer to provide transport, that Part V of the repealed Employment Act Cap 226 does not include transport as a mandatory minimum, and that the employee was not assaulted in the course of employment as he had not reached the designated workplace. The magistrate's imputation of negligence was unsupported by evidence, law or authority. The court allowed the appeal, set aside the entire judgment, and, sympathising with the respondent, ordered each party to bear their own costs in both courts.

Key legal issues

#
01

Vicarious liability for assault by unknown assailants en route to work

Holding

The magistrate erred in imputing negligence and vicarious liability to the employer; the employee had not clocked in at work and the attackers were never identified as company employees.

Reasoning

The trial court imputed a duty on the employer to provide transport or security, but there was no contractual provision, statutory duty or case law supporting such an obligation for night-shift workers. The attack occurred about a kilometre from the factory, the employee had not clocked in, and the attackers' identity was never established. Any civil liability lay with the unknown assailants, not the employer.

p. 3
02

Employer's statutory duties regarding transport

Holding

Transport to and from work is not among the mandatory minimum provisions under Part V of the repealed Employment Act Cap 226.

Reasoning

Part V of the Employment Act Cap 226 lists hours of work, sick leave, housing, water, food and medical attention as mandatory minimums, but excludes transport. Any obligation to provide safe transport arises only from specific contract, collective bargaining agreements or sectoral regulatory wage orders, none of which the respondent proved.

p. 3
03

Award of general damages and contributory negligence apportionment

Holding

The award of general damages at 70% liability against the Appellant was based on wrongful imputation of liability and was erroneous in law and fact.

Reasoning

Since the finding of liability was erroneous, the consequential award of general damages at 70/30 apportionment against the Appellant could not stand. The entire judgment was set aside, though the court sympathised with the respondent and spared him costs.

p. 3

Legal principles established

#
  • An employer cannot be held vicariously liable for criminal acts of unknown third parties committed against an employee before the employee reaches the designated workplace.
  • Transport to and from work is not a mandatory minimum provision by an employer to an employee under Part V of the (repealed) Employment Act Cap 226.
  • On a first appeal, the court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses.

Court orders

#
  1. 1.The court sets aside the entire judgment by L.N. Mbugua SRM delivered on 18th July 2007 in favour of the respondent.
  2. 2.Each party to bear their own costs of the suit in the trial court and this court.

Authorities

#

Legislation

  • Employment Act Cap 226 (repealed by Employment Act, 2007)Part 'V' Reliefs and Duties in Employment

Cases cited (3)

  • Selle and another vs Associated Motor Boat Company Limited and others
    (1968) EA 123
  • David Mugunga vs Muntomoini Estate
    Nairobi HCC No. 2366 of 1989
  • Jeewarat vs Warner Bros. Entm't Inc.
    177 Cal. App. 4th 427, 98 Cal. Rptr. 3d 837 (2009)
On appeal from
Nyando Senior Resident Magistrate's Court
SRMCC No. 225 of 2016
Jurisdiction invoked
First appeal from the magistrates' court (Selle v Associated Motor Boat Co Ltd test)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chemelil Sugar Company Limited v George Omondi Athembo [2019] KEELRC 835 (KLR)", Case Analysis (2019). Appeal against judgment in Nyando SRMCC No. 225 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/835/eng@2019-09-18

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