Chemelil Sugar Company Limited v George Omondi Athembo [2019] KEELRC 835 (KLR)
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
#Key legal issues
#Vicarious liability for assault by unknown assailants en route to work
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.
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.
Employer's statutory duties regarding transport
Transport to and from work is not among the mandatory minimum provisions under Part V of the repealed Employment Act Cap 226.
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.
Award of general damages and contributory negligence apportionment
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.
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.
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- Transport to and from work is not a mandatory minimum provision by an employer to an employee under Part V of the (repealed) Employment Act Cap 226.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.The court sets aside the entire judgment by L.N. Mbugua SRM delivered on 18th July 2007 in favour of the respondent.
- 2.Each party to bear their own costs of the suit in the trial court and this court.
- 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.