Bigot Flowers (K) Flowers Limited v Livingstone Oramis Ekirapa [2019] KEELRC 1079 (KLR)
The bottom line
#A Kenyan court cut an injured worker's compensation in half because he ignored safety precautions, even though his employer was still partly to blame.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved injury arising from the appellant's negligence
The respondent proved on a balance of probabilities that he was injured while working at the appellant's premises, his evidence being corroborated by hospital and medical evidence
On re-evaluation, the court found the respondent's explanation plausible: he received first aid and ointment on site and later went to hospital when his leg swelled. His account was corroborated by Samwel Nyabuto of Naivasha district hospital and Dr Obed's medical report. The absence of an accident report was explained by the minor nature of initial first aid treatment.
Contributory negligence and apportionment of liability
Liability should have been apportioned at 50% instead of 100% because the appellant had taken preventive measures by providing gumboots, and apportionment should take account of causation and capability
The court applied Winfield and Jolowicz on contributory negligence, noting that the degree of care varies with the circumstances. The respondent had been issued with gumboots, a reasonable safety measure, yet he failed to take his own precaution while working. The injury, though proven, had healed well and was assessed as harm, justifying equal apportionment.
Whether the award of general damages should be disturbed
The quantum was not disturbed as an award; the reduction to Ksh.65,500.00 flowed solely from the apportionment of liability at 50%
Applying the Kemfro Africa principles, the court found the trial magistrate had considered the nature of the injury and referred to decided cases. There was no irrelevant factor considered, no relevant factor omitted, and the award was not inordinately high or low. The reduction resulted from the liability apportionment rather than a finding that the assessment was erroneous.
Legal principles established
#- An appellate court may interfere with quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate
- A first appellate court must reconsider and re-evaluate the evidence adduced before the trial court to arrive at an independent decision
Court orders
#- 1.Appeal on liability succeeds which is hereby apportioned at 50%:50%
- 2.Since liability is apportioned the assessment of damages at Ksh.135,000.00 is hereby reduced to ksh.65,500.00
- 3.Each party shall bear own costs of the appeal
- On appeal from
- Senior Resident Magistrate's Court at Naivasha
- SPMCC No.684 of 2010
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Senior Resident Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bigot Flowers (K) Flowers Limited v Livingstone Oramis Ekirapa [2019] KEELRC 1079 (KLR)", Case Analysis (2019). Civil Appeal No.3 of 2016 (Formerly Nakuru High Court Misc. No.1 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1079/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.