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ELRCPartially AllowedELRC Appeal No. 31 of 2018 (Formerly Nakuru High Court Civil Appeal No. 51 of 2017)· [2019] KEELRC 1768 (KLR)

Subati Flowers Limited v John Kariuki Githae [2019] KEELRC 1768 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
25 April 2019
MMM. Mbaru
2,049 words in judgment
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The bottom line

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A Kenyan court cut an employer's liability for a greenhouse fall in half because the injured worker refused to wear a provided helmet.

What this practically means

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Executive summary

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The respondent, a general worker employed by the appellant, was injured on 2nd July 2012 when he fell with a metal ladder while replacing polythene papers on the roof of a greenhouse. He suffered unstable fractures of cervical vertebrae C5 and C6, anterolisthesis of C6 over C7, soft tissue injuries, classified as grievous harm with 40% permanent disability. The trial magistrate found the appellant 100% liable for negligence and awarded damages. The appellant appealed on eight grounds, contending that the respondent failed to prove particulars of negligence, that the respondent had been issued a helmet and belt but failed to use them, and that contributory negligence should have been found; quantum was also said to be excessive. The respondent defended both liability and quantum. The Court, as a first appellate court, restated its duty under Selle v Associated Motor Boat Co. to re-evaluate the evidence and reach its own conclusions. On the evidence, including the respondent's own admission that he declined to wear a helmet because of the nature of his work and the testimony of a co-worker confirming safety apparel had been issued but that the supervisor was absent when the accident occurred, the Court held that liability should be shared equally. The employer's breach was the absence of supervision during dangerous work, while the employee's failure to use issued safety equipment contributed to the fall. The Court found no material to disturb the assessment of quantum and varied only the liability apportionment. Judgment was entered with a review of the trial judgment apportioning liability at 50%:50%, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Liability for the workplace accident and apportionment

Holding

Liability should be shared equally between employer and employee at 50%:50% rather than 100% against the employer, because the employee was issued a helmet but chose not to use it, while the employer breached its duty through the absence of a supervisor.

Reasoning

The respondent admitted he was given a helmet but declined to wear it because of the nature of his work, and he fell while stepping on a metal bar. The employer had deemed the helmet necessary for the work. However, the employer's failure to provide supervisory oversight for dangerous work on greenhouse roofs was its own breach. Both failures contributed to the accident, justifying equal apportionment of liability.

p. 3
02

Quantum of damages

Holding

The trial court's assessment of quantum was not disturbed; only the apportionment of liability was varied.

Reasoning

The court found that the trial magistrate properly assessed damages, having considered the grievous harm, unstable fractures of cervical vertebrae C5 and C6, and 40% permanent disability assessed by Dr Kiamba. No material was presented on appeal demonstrating an error in the quantum award warranting interference.

p. 4
03

Standard of review on first appeal

Holding

As a first appellate court, this Court is obliged to re-evaluate the evidence and reach its own conclusions, subject to the trial court's advantage of observing witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Co., the court restated the duty of a first appellate court: it need not accept the findings of fact below, must evaluate the evidence itself, but must make allowance for not having seen or heard the witnesses. The court applied this standard in revisiting the liability findings of the trial magistrate.

p. 2

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for the trial court's advantage of seeing and hearing the witnesses.
  • An employer's duty is to provide a safe place of work and to make the place of employment as safe as the exercise of reasonable skill and care would permit.
  • Work tools issued by an employer are meant to ensure safety and minimise industrial accidents, and an employee who fails to use issued safety equipment may be found to have contributed to his own injury.

Court orders

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  1. 1.Judgment entered for the appellant with a review of the judgment in Nakuru CMCC No. 642 of 2015
  2. 2.Apportionment of liability at 50%:50% between the parties
  3. 3.Findings on costs payable to the respondent in the lower court upheld
  4. 4.Each party to bear their own costs of the appeal

Authorities

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Cases cited (6)

  • Eastern Produce (K) Limited v Christopher Atiado Osiro
    HCCA No.43 of 2001 (Eldoret)
  • Stratpack Industries v James Mbithi Munyao
    HCCA No.152 of 2003 (Nairobi)
  • Boniface Muthama Kavita v Carton Manufactures Ltd
    [2015] eKLR
  • Oluoch Eric Gogo v Universal Corporation Limited
    [2015] eKLR
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Samson Emuru v Ol Suswa Farm Ltd
    Nakuru HCCA No. 6 of 2003
On appeal from
Senior Principal Magistrate's Court at Nakuru
CMCC No. 642 of 2015
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in CMCC No. 642 of 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Subati Flowers Limited v John Kariuki Githae [2019] KEELRC 1768 (KLR)", Case Analysis (2019). ELRC Appeal No. 31 of 2018 (Formerly Nakuru High Court Civil Appeal No. 51 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1768/eng@2019-04-25

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