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ELRCDismissedELRC Appeal No. 17 of 2018 (Formerly Nakuru High Court Civil Appeal No. 206 of 2013)· [2019] KEELRC 1106 (KLR)

Richard Moguche Arati v Menengai Oil Refineries Ltd [2019] KEELRC 1106 (KLR)

Employment and Labour Relations Court of Kenya
28 March 2019
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that proving you were injured at work is not enough—you must also prove your employer was actually negligent.

What this practically means

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Executive summary

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This was a first appeal in the Employment and Labour Relations Court at Nakuru against the judgment of Hon. J Mwaniki, Magistrate, in Nakuru CMCC No. 414 of 2009, delivered on 8th October 2013, dismissing the appellant's claim for injuries allegedly sustained on 23rd August 2008 while arranging timber as an employee of the respondent, when a nail stabbed him in the chest. The appellant claimed the injury arose from the respondent's negligence and breach of the employment contract to provide a safe work environment; the defence denied employment liability and attributed the injury to the appellant's own negligence. On appeal, the appellant sought setting aside of the trial judgment and assessment of damages, contending the trial magistrate failed to consider his evidence, exhibits and submissions. The respondent maintained the claim was properly dismissed, that no accident was reported on the material date, and that the work was manual and did not require expertise such as to attract employer liability. The court framed three issues: employment, negligence or breach of statutory duty, and proof to the required standard. It found the fact of employment and injury at work not materially challenged, but agreed with the trial court that the work was not inherently dangerous, that the appellant had full control of what he was doing, and that no negligence or breach of duty was established. Applying principles from Van Daventer v Workmen's Compensation Commissioner and Clyde Coal Co. Ltd v English, the court found no material to disturb the trial findings and dismissed the appeal, confirming the trial judgment with costs of the appeal to the respondent.

Key legal issues

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01

Whether the appellant was an employee of the respondent and was injured at work on 23rd August 2008

Holding

The fact of employment and injury at work was not challenged in any material way and was affirmed by the trial court

Reasoning

The appellant testified he was employed in 2007 as a general worker with a letter of appointment, and that he was injured while arranging timber. The trial court affirmed these facts. The defence witness's evidence that injured employees are taken to Nakuru provincial hospital was consistent with the appellant's testimony of being treated there, and the respondent's failure to keep a work injury record could not be visited upon the employee.

p. 2
02

Whether there was negligence or breach of statutory duty by the employer

Holding

The trial court correctly found no negligence or breach of duty; the work was not inherently dangerous and the employee had full control of what he was doing

Reasoning

The court reviewed the impugned judgment and found it had considered the appellant's case, defence, case law and submissions, giving findings and reasons. Citing Van Daventer and Clyde Coal Co. Ltd v English, the employer's duty is reasonableness in the circumstances, not constant supervision. The trial court's finding that the plaintiff was the author of his own misfortune disclosed no error warranting appellate interference.

p. 3
03

Whether the appeal disclosed grounds warranting setting aside the trial judgment

Holding

The appeal lacked merit and the trial judgment was confirmed

Reasoning

On first appellate review the court was duty-bound to re-evaluate the entire case, but found no material to disturb the trial court's findings that there was no negligence or breach of contract on the part of the respondent and that the appellant was the author of his own misfortune. The claim had not been proved to the required standard.

p. 3

Legal principles established

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  • An employer owes a common law duty to take reasonable care for the safety of his workmen, the content of which is a question of fact depending on the circumstances of each case
  • An employer's duty is to take all reasonable steps to ensure an employee's safety, but the employer is not expected to babysit or constantly watch over the employee
  • The questions in addressing whether there was negligence are foreseeability of injury and whether it is fair, just and reasonable to impose a duty

Court orders

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  1. 1.The appeal is found without merit and is dismissed
  2. 2.The judgment of the trial court is confirmed
  3. 3.Costs of the appeal are awarded to the respondent
On appeal from
Nakuru Chief Magistrate's Court
Nakuru CMCC No. 414 of 2009
Jurisdiction invoked
Appeal from the magistrates' court to the Employment and Labour Relations Court (employment and labour relations matter); former Nakuru High Court Civil Appeal transferred to ELRC

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, "Richard Moguche Arati v Menengai Oil Refineries Ltd [2019] KEELRC 1106 (KLR)", Case Analysis (2019). ELRC Appeal No. 17 of 2018 (Formerly Nakuru High Court Civil Appeal No. 206 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1106/eng@2019-03-28

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