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ELRCDismissedNot stated in the judgment· [2019] KEELRC 1125 (KLR)

Zakaria Sawala Choka v Tile & Carpet Centre [2019] KEELRC 1125 (KLR)

Employment and Labour Relations Court of Kenya at Mombasa
19 July 2019
945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa, decided by James Rika, Judge, against the dismissal by the Trial Court on 12th May 2015 of the Appellant's claim for injuries sustained on 27th November 2011 while playing football at an end-of-year recreational event organised by his employer on a Sunday at KPA Grounds. The Appellant, a Loader employed at Ganjoni, alleged negligence on grounds including failure to supply fit-for-purpose shoes, dangerous conditions, lack of adequate precautions, exposure to foreseeable risk, and failure to provide a safe system of work. The Trial Court dismissed the claim on the doctrine of volenti non fit injuria. On appeal, the parties agreed the appeal be determined on the record. The Court held that the Appellant's own evidence showed the injury occurred outside work, on his rest day, in a voluntary recreational activity, so it was a recreational activity injury rather than a work injury. Applying the principle that there can be no employer liability for work injury without fault, drawn from Kiema Muthuku v Kenya Cargo Handling Services Ltd and Statpack Industries v James Munyao, and following Homegrown [K] Limited v. Jackline Bonareri Otieno, the Court found the Appellant was not compelled to attend, was not contracted or paid to play football, and voluntarily assumed the risks of the game. The Trial Court was found to have applied the law correctly. The appeal was rejected with no order as to costs.

Key legal issues

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01

Whether the injury sustained during an employer-organised recreational football match amounts to a work injury attracting employer liability

Holding

No. The Appellant was injured outside the scope of his ordinary duty in a recreational activity he freely consented to participate in; the injury was a recreational activity injury, not a work injury.

Reasoning

The Appellant's own evidence established the injury occurred on a Sunday, his rest day, at KPA Grounds during end-of-year celebrations. He was employed as a Loader and was not contracted or paid to play football. Participation was voluntary and he could have stayed home without employment consequences. Employer liability for work injury requires fault, and no fault arises in voluntary recreational activity outside the scope of duty.

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02

Whether the defence of volenti non fit injuria was properly applied by the Trial Court

Holding

Yes. The Trial Court was correct; the Appellant chose freely to play recreational football and voluntarily assumed the attendant risk.

Reasoning

The Appellant was a loader, not a professional footballer, and the Respondent deals in tiles and carpets, not professional football. The Respondent aptly relied on Homegrown [K] Limited v. Jackline Bonareri Otieno where, on similar facts, the High Court held the employee played for her own pleasure and the employer owed no duty of care. Voluntary participation in the game meant liability could not attach.

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03

Whether the Appellant was under the Respondent's compulsion to attend and participate in the event

Holding

No. The incident happened on a Sunday, outside the Appellant's ordinary schedule and place of work, and he was not compelled to attend or participate.

Reasoning

The Appellant worked six days a week at Ganjoni and Sunday was his rest day. He could have stayed home without risking a charge of absence from work without leave or lawful cause. Absent compulsion, the employment relationship did not place him at the location or in the activity, and the causal link required for employer liability was absent.

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Legal principles established

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  • There can be no liability on the part of an Employer for work injury occasioned to an Employee without fault
  • Employers are not liable for injuries sustained by employees in voluntary recreational activities organised by the employer, outside working hours and freely consented to

Court orders

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  1. 1.The Appeal is rejected
  2. 2.No order on the costs
On appeal from
Trial Court (magistrates' court, not named in the judgment)
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the Trial Court's decision (parties agreed on 4th July 2018 to have the Appeal determined on the strength of the record)

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, "Zakaria Sawala Choka v Tile & Carpet Centre [2019] KEELRC 1125 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1125/eng@2019-07-19

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